                                                                           PD-0667-15
                                                        COURT OF CRIMINAL APPEALS
                                                                         AUSTIN, TEXAS
                                                        Transmitted 7/13/2015 3:22:43 PM
                                                          Accepted 7/15/2015 3:36:03 PM
                                                                          ABEL ACOSTA
                         PD 0667-15                                               CLERK


           IN THE COURT OF CRIMINAL APPEALS

                         OF TEXAS
   _______________________________________________

                KENNETH COOPER MCAFEE,
                       Appellant,

                             v.

                 THE STATE OF TEXAS,
                       Appellee.
   _______________________________________________

        On Petition for Discretionary Review from the
         First Court of Appeals in No. 01-13-00777-CR
       affirming the conviction in cause number 1262341,
     From the 339th District Court of Harris County, Texas
   _______________________________________________

     APPELLANT’S PETITION FOR DISCRETIONARY REVIEW
   _______________________________________________

ORAL ARGUMENT NOT REQUESTED             ALEXANDER BUNIN
                                        Chief Public Defender
                                        Harris County, Texas

                                        JANI MASELLI WOOD
                                        Assistant Public Defender
                                        Harris County, Texas
                                        TBN. 00791195
                                        1201 Franklin Street, 13th Floor
                                        Houston, Texas 77002
                                        Phone: (713) 368-0016
                                        Fax: (713) 368-9278
       July 15, 2015
                                        Counsel for Appellant
                                        July 13, 2015
                IDENTITY OF PARTIES AND COUNSEL

APPELLANT:                    Mr. Kenneth Cooper McAfee
                              TDCJ# 01879352
                              Polunsky Unit
                              3872 FM 350 South
                              Livingston, TX 77351

TRIAL PROSECUTOR:             Ms. Donna Logan
APPELLATE PROSECUTOR:         Ms. Jessica Caird
                              Assistant District Attorney
                              Harris County, Texas
                              1201 Franklin, 6th Floor
                              Houston, Texas 77002

DEFENSE COUNSEL AT TRIAL:     Mr. Gerald Fry
                              Ms. Emily Shelton
                              801 Congress #350
                              Houston, Texas 77002

PRESIDING JUDGE:              Hon. Maria T. Jackson, Presiding Judge
                              339th District Court
                              Harris County, Texas
                              1201 Franklin, 14th floor
                              Houston, Texas 77002

DEFENSE COUNSEL ON APPEAL: Mrs. Jani Maselli Wood
                          Assistant Public Defender
                          Harris County, Texas
                          1201 Franklin, 13th Floor
                          Houston, Texas 77002




                               -2-
                                         TABLE OF CONTENTS
                                                                                                                   PAGE

Identity of Parties. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Table of Contents. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Index of Authorities. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

Statement Regarding Oral Argument. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .                    6

Statement of the Case. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Statement of Procedural History. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Ground for Review. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

          The attorney/client privilege is viewed from the perspective of the
          client. The State never provided any evidence Mr. McAfee had waived
          the privilege. Did the Court of Appeals err in determining that the trial
          court did not abuse its discretion is admitting evidence protected by
          attorney/client privilege?. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Reason for Review. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Statement of Facts.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Argument.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

          1.        Neither the State nor the Court of Appeals could ever point to
                    evidence Mr. McAfee had waived his attorney/client privileged
                    discussions with Mr. Storer.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

          2.        The privilege belonged to Mr. McAfee to waive - not his attorney
                    ........................................................ 9




                                                             -3-
         3.        The Court of Appeals belief that because Mr. McAfee and his
                   attorney were friends that no privilege existed is inconsequential
                   to whether the privilege was actually waived.. . . . . . . . . . . . . . . . . . 11

Prayer for Relief. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

Certificate of Service. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

Certificate of Compliance. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

Appendix . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17




                                                            -4-
                                         INDEX OF AUTHORITIES
                                                                                                           PAGE
Cases:

Carmona v. State,
      941 S.W.2d 949 (Tex. Crim. App. 1997). . . . . . . . . . . . . . . . . . . . . . . 9, 10, 11

Cruz v. State,
       586 S.W.2d 861 (Tex. Crim. App. [Panel Op.] 1979).. . . . . . . . . . . . . . 11, 12

McAfee v. State,
      01-13-00777-CR, 2015 WL 2235122
      (Tex. App.—Houston [1st Dist.] May 12, 2015, no. pet. h.) . . . . . . . . passim

Motilla v. State,
       78 S.W.3d 352 (Tex. Crim. App. 2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Sanford v. State,
       21 S.W.3d 337 (Tex. App. - El Paso 2000, no pet.). . . . . . . . . . . . . . . . . . . 10

State v. Martinez,
        116 S.W.3d 385 (Tex. App. - El Paso 2003, no pet.). . . . . . . . . . . . . . . . . . 10


Statutes and Rules:

TEX. CODE CRIM. PROC. 19.02. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

TEX. R. EVID. 503 (b)(1)(A). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

TEX. R. EVID. 503(B)(1). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

TEX. R. EVID. 503 (b)(2). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9, 10




                                                        -5-
                    STATEMENT REGARDING ORAL ARGUMENT

        Oral argument is not requested.

                              STATEMENT OF THE CASE

        This is an appeal from a conviction for murder. (I. C.R. at 687). TEX. CODE

CRIM. PROC. 19.02. Mr. McAfee pleaded not guilty by reason of insanity and was

found guilty by a jury. (I. R.R. at 415, 687). The judge assessed punishment at

confinement for 99 years in the Texas Department of Criminal Justice - Institutional

Division and a $10,000 fine. (C.R. at 687).

                    STATEMENT OF THE PROCEDURAL HISTORY

        In a published opinion, the First Court of Appeals affirmed Mr. MCafee’s

conviction.     McAfee v. State, 01-13-00777-CR, 2015 WL 2235122                   (Tex.

App.—Houston [1st Dist.] May 12, 2015, no. pet. h.). No motion for rehearing was

filed. After an extension of time, this petition is timely if filed on or before July 13,

2015.




                                           -6-
                               GROUND FOR REVIEW

      The attorney/client privilege is viewed from the perspective of the
      client. The State never provided any evidence Mr. McAfee had waived
      the privilege. Did the Court of Appeals err in determining that the trial
      court did not abuse its discretion is admitting evidence protected by
      attorney/client privilege?

                               REASON FOR REVIEW

      The First Court of Appeals has decided an important question of state
      or federal law in a way that conflicts with the applicable decisions of the
      Court of Criminal Appeals or the Supreme Court of the United States.
      TEX. R. APP. P. 66.3(c).

             STATEMENT OF FACTS RELATIVE TO GROUND RAISED

      Mr. McAfee was convicted of killing his wife; the Court of Appeals explained

his background succinctly:

       In 2006, appellant began to suffer from various health problems. These
      issues led to the breakup of appellant's marriage to Janet, and the two
      were in the process of getting divorced. The record contains conflicting
      evidence regarding the nature of appellant's physical and mental health
      issues and includes testimony that appellant suffered from drug and
      alcohol abuse, depression, anxiety and panic attacks, degenerative
      neurological disease, and dementia. It is undisputed that at the time of
      the offense appellant was living in an assisted living facility.

McAfee, 2015 WL 2235122, at *1. Mr. McAfee shot his wife and due to a panic alarm,

there was a SWAT stand off. Id., at *1-3.




                                          -7-
Motion to Suppress

       The defense moved to suppress the statements of Charles Storer, Mr. McAfee’s

attorney. (6 R.R. at 8). A hearing was held outside the presence of the jury. (6 R.R.

at 8). Mr. Storer stated Mr. McAfee called him on the day of the offense and stated

he had done something horrible. (6 R.R. at 9). Mr. Storer testified it was a private

conversation and that Mr. McAfee was talking to him in his capacity as an attorney.

(6 R.R. at 9). Mr. Storer went to the scene of the offense and introduced himself to

the police as Mr. McAfee’s attorney. (6 R.R. at 9). Defense Exhibit 1 was introduced,

a police report stating that Mr. Storer arrived on the scene and introduced himself as

the attorney of Mr. McAfee. (21 R.R. at D-1; 6 R.R. at 10).

       The State focused on the fact that Mr. McAfee and Mr. Storer had been friends

for many years. (6 R.R. at 7-14). Mr. McAfee had lived with Mr. Storer and his wife

for a short time. (6 R.R. at 18-21). In the beginning of May 2012, Mr. Storer had

started representing Mr. McAfee in his divorce. (6 R.R. at 16). The State asked

whether there had been any formal discussions about representing him in criminal

matters. (6 R.R. at 17). Further, the State offered the 9-1-1 call where Mr. Storer

called the police telling them there had been a shooting, and that his friend had killed

his wife. (6 R.R. at 21). Mr. Storer also gave information to the police about what Mr.

McAfee had told him. (6 R.R. at 23). In that statement, Mr. Storer agreed with the



                                          -8-
officer that he was not representing Mr. McAfee on a criminal case. (6 R.R. at 27).

However, Mr. Storer clarified that he was trying to find another attorney to handle the

criminal case and he was representing him. (6 R.R. at 29-30). Further, Mr. McAfee

never waived the attorney/client privilege nor gave Mr. Storer permission to speak

with anyone about the case. (6 R.R. at 30).

       After argument of counsel, the court determined there was no attorney/client

privilege. (6 R.R. at 39).

                                      Argument

       The attorney/client privilege is viewed from the perspective of the
       client. The State never provided any evidence Mr. McAfee had waived
       the privilege. Did the Court of Appeals err in determining that the trial
       court did not abuse its discretion is admitting evidence protected by
       attorney/client privilege?


1.     Neither the State nor the Court of Appeals could ever point to evidence
       Mr. McAfee had waived his attorney/client privileged discussions with
       Mr. Storer.

       The Court of Appeals held “[t]he record contains conflicting evidence

regarding the nature of appellant’s relationship with Storer at the time the phone calls

occurred.” McAfee, 2015 WL 2235122 at *16. Then the Court of Appeals stated that

“appellant told police that he wanted to see his attorney and that when Storer arrived

on the scene, he introduced himself as appellant’s attorney.” Id.




                                          -9-
2.    The privilege belonged to Mr. McAfee to waive - not his attorney.

      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; between the client or a

representative of the client, and the client's lawyer or a representative of the lawyer.

TEX. R. EVID. 503 (b)(1)(A). In criminal cases, a client has a privilege to prevent the

lawyer or 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. TEX. R. EVID. 503 (b)(2).

      The power to waive the attorney-client privilege belongs to the client, or his

attorney or agent both acting with the client's authority. Carmona v. State, 941 S.W.2d

949, 953 (Tex. Crim. App. 1997). This Court has explained:

      the mere fact privileged materials already have been disclosed does not
      establish a “presumptive” or “automatic waiver.” See Jordan v. Court of
      Appeals for Fourth Supreme Judicial District, 701 S.W.2d 644, 649–51
      (Tex.1985) (orig. proceeding) (Gonzalez, J., concurring and dissenting)
      (mere disclosure of privileged materials does not establish an “automatic
      waiver”); TEX.R.CRIM.EVID. 511 (holder of the privilege waives the
      privilege if he discloses or consents to disclosure of any significant part
      of privileged materials).

Carmona v. State, 941 S.W.2d 949, 953-54 (Tex. Crim. App. 1997).

      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


                                          -10-
rendition of professional legal services to the client. TEX. R. EVID. 503(B)(1).

503(B)(2) further provides that:

       in criminal cases, a client has a privilege to prevent the lawyer or 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.

       The “[i]nvocation of the privilege is dependent upon the existence of an

attorney-client relationship, which has been defined as a contractual relationship

whereby an attorney agrees to render professional services for a client.” State v.

Martinez, 116 S.W.3d 385, 392 (Tex. App. - El Paso 2003, no pet.). The client bears

the burden of establishing the existence of the privilege. Sanford v. State, 21 S.W.3d

337, 342 (Tex. App. - El Paso 2000, no pet.), abrogated on other grounds, Motilla v.

State, 78 S.W.3d 352 (Tex. Crim. App. 2002). Mr. Storer had been representing Mr.

McAfee in his divorce. (6 R.R. at 15-16). There was an attorney/client relationship.

       The “attorney-client privilege is designed for the benefit of the client by

guaranteeing to the client the confidentiality necessary to promote forthright

communications between the lawyer and the client.” Carmona, 941 S.W.2d at 953.

Additionally "[t]he Rules of Criminal Evidence make it clear the attorney-client

privilege is held by the client, not the attorney... [a]nd only the client, or an attorney

acting with the client's consent, may waive the attorney-client privilege." Carmona, 941

S.W.2d at 956. (Baird concurring) (citations omitted). Texas law does not authorize


                                           -11-
attorneys to unilaterally waive the attorney-client privilege for their clients; only the

client may relinquish the privilege. Id. citing Cruz v. State, 586 S.W.2d 861 (Tex. Crim.

App. [Panel Op.] 1979).

3.     The Court of Appeals belief that because Mr. McAfee and his attorney
       were friends that no privilege existed is inconsequential to whether the
       privilege was actually waived.

       The Court of Appeals discussion of the friendship of the two men is

insignificant for the analysis:

       However, it was undisputed that appellant and Storer were long-time
       friends, and Storer testified that he was probably appellant's closest
       friend. Appellant did not call Storer's legal office; rather, he called
       Storer's cell phone. Storer also acknowledged that he did not typically
       practice criminal defense law.

McAfee, 2015 WL 2235122, at *16.

       Mr. McAfee referred to Charles Storer as “my attorney” while talking to the

S.W.A.T negotiator and received legal advice from Charles Storer on May 8, 2010.

Charles Storer testified that he was giving legal advice and viewed Mr. McAfee as his

friend as well. An objective analysis of these facts demonstrate Mr. McAfee thought

he was conducting privileged communications to obtain legal advice from an attorney.

       However it is not Mr. McAfee's burden to disprove waiver, it is the State's

burden to prove waiver. Carmona, 941 S.W.2d at 953(party seeking to benefit from a

finding of waiver has the burden to provide evidence that supports a finding of



                                          -12-
waiver). The State failed to do so. Waiver is not to be “lightly inferred.” Cruz, 586

S.W.2d at 865.

      Mr. McAfee was harmed because the statements by Storer were used by Dr.

Moeller to somehow prove that Mr. McAfee was sane at the time of the offense. The

jury could have latched onto this privileged communications and used to justify their

decision to not find for the insanity defense. The law is clear - there was not one

shred of evidence presented that Mr. McAfee ever waived the privilege with Mr.

Storer. A review of the SWAT recording (SX 96) shows Mr. McAfee repeatedly asked

for his attorney. Mr. Storer introduced himself as Mr. McAfee’s attorney.

      The Court of Appeals erred in determining that the trial court did not err in

failing to grant the motion to suppress. Review should be granted.




                                        -13-
                                PRAYER FOR RELIEF

      For the reasons states above, Mr. McAfee prays that this Court grant his

petition for discretionary review.



                                      Respectfully submitted,
                                      ALEXANDER BUNIN
                                      Chief Public Defender
                                      Harris County Texas

                                      Jani Maselli Wood
                                      _______________________________
                                      JANI J. MASELLI WOOD
                                      Assistant Public Defender
                                      Harris County, Texas
                                      Jani.Maselli@pdo.hctx.net
                                      TBN. 00791195
                                      1201 Franklin Street, 13th Floor
                                      Houston, Texas 77002
                                      Phone: (713) 368-0016
                                      Fax: (713) 368-9278

                                      Attorney for Appellant
                                      Kenneth Cooper McAfee




                                       -14-
                             CERTIFICATE OF SERVICE

       Pursuant to Tex. R. App. Proc. 9.5, this certifies that on July 13, 2015, a copy
of the foregoing was emailed to Lisa McMinn, State Prosecuting Attorney, and the
Harris County District Attorney’s Office through texfile.com at the following address:

Jessica Caird
Assistant District Attorney
1201 Franklin Street, 6th Floor
Houston, TX 77002
caird_jessica@dao.hctx.net

Lisa McMinn
Lisa.McMinn@SPA.texas.gov



                                 Jani Maselli Wood
                           _________________________________
                           JANI J. MASELLI WOOD




                                         -15-
                        CERTIFICATE OF COMPLIANCE

       Pursuant to proposed Rule 9.4(i)(3), undersigned counsel certifies that this

petition complies with the type-volume limitations of TEX. R. APP. PROC. 9.4(I)(2)(D).

1.     Exclusive of the portions exempted by TEX. R. APP. PROC. 9.4 (I)(1), this

petition contains 1768 words printed in a proportionally spaced typeface.

2.     This petition is printed in a proportionally spaced, serif typeface using

Garamond 14 point font in text and Garamond 14 point font in footnotes produced

by Corel WordPerfect software.

3.     Undersigned counsel understands that a material misrepresentation in

completing this certificate, or circumvention of the type-volume limits in Tex. R. App.

Proc. 9.4(j), may result in the Court's striking this brief and imposing sanctions against

the person who signed it.



                                                  Jani Maselli Wood

                                          ____________________________

                                          JANI J. MASELLI WOOD




                                           -16-
    Appendix A



Opinion London v. State
McAfee v. State, --- S.W.3d ---- (2015)




                                                             Holdings: The Court of Appeals, Evelyn V. Keyes, J., held

                    2015 WL 2235122                          that:

    Only the Westlaw citation is currently available.



NOTICE: THIS OPINION HAS NOT BEEN RELEASED                   [1] evidence was factually sufficiency to support finding that

   FOR PUBLICATION IN THE PERMANENT LAW                      defendant was aware his conduct was wrong when he

  REPORTS. UNTIL RELEASED, IT IS SUBJECT TO                  murdered his wife;

            REVISION OR WITHDRAWAL.



               Court of Appeals of Texas,                    [2] the trial court's error, if any, in permitting the prosecution
                    Houston (1st Dist.                       to define the word “wrong” during voir dire by using a

                                                             commonly accepted definition of the term that was broader

                                                             than the definition set out by caselaw did not constitute
           Kenneth Cooper McAfee, Appellant
                                                             reversible error; and
                            v.

              The State of Texas, Appellee

NO. 01–13–00777–CR | Opinion issued May 12, 2015
                                                             [3] the attorney-client privilege did not apply to bar evidence

                                                             of the telephone calls defendant made to his friend, who was

                                                             also an attorney, on the night of the murder.



                                                             Affirmed.


Synopsis

Background: Defendant was convicted in the 339th District

Court, Harris County, of murder and he was sentenced to 99
                                                             West Headnotes (43)
years of imprisonment. Defendant appealed.




                           © 2015 Thomson Reuters. No claim to original U.S. Government Works.
McAfee v. State, --- S.W.3d ---- (2015)




[1]    Criminal Law                                           [4]   Criminal Law
           Defenses in general                                           Verdict unsupported by evidence or contrary
       Criminal Law                                                 to evidence
           Particular issues or elements                            Criminal Law
                                                                         Rendition, form, and entry of judgment
       The Texas Court of Criminal Appeals has adopted
       the civil standard of factual-sufficiency review for         The Court of Appeals may sustain a defendant's
       challenges to the rejection of an affirmative                factual-sufficiency claim only if, after setting out
       defense because the burden of proof is that of               the relevant evidence and explaining precisely
       preponderance of the evidence, the same burden               how the contrary evidence greatly outweighs the
       applied in civil proceedings.                                evidence supporting the verdict, the Court clearly
                                                                    states why the verdict is so much against the great
                                                                    weight of the evidence as to be manifestly unjust,
       Cases that cite this headnote                                conscience-shocking, or clearly biased.


                                                                    Cases that cite this headnote
[2]    Criminal Law
           Particular issues or elements

       In making a factual-sufficiency claim, the             [5]   Criminal Law
       defendant is asserting that, considering the entire              Particular issues or elements
       body of evidence, the jury's adverse finding on his          Criminal Law
       affirmative defense was so against the great                     Ordering new trial
       weight and preponderance of the evidence as to
       be manifestly unjust.                                        If the Court of Appeals determines that the
                                                                    evidence supporting an affirmative defense so
                                                                    greatly outweighs the State's contrary evidence
       Cases that cite this headnote                                that the verdict is manifestly unjust, then the
                                                                    Court of Appeals may reverse the trial court's
                                                                    judgment and remand for a new trial.

[3]    Criminal Law
           Weight of Evidence in General                            Cases that cite this headnote
       Criminal Law
           Province of jury or trial court

       On a challenge to the sufficiency of the evidence      [6]   Criminal Law
       the Court of Appeals may not usurp the function                  Insanity
       of the jury by substituting its judgment in place of
       the jury's assessment of the weight and credibility          To establish the affirmative defense of insanity,
       of the witnesses' testimony.                                 the defendant must prove that, at the time of the
                                                                    conduct charged, the actor, as a result of severe
                                                                    mental disease or defect, did not know that his
       Cases that cite this headnote                                conduct was wrong. Tex. Penal Code Ann. § 8.01.


                                                                    Cases that cite this headnote




                            © 2015 Thomson Reuters. No claim to original U.S. Government Works.
McAfee v. State, --- S.W.3d ---- (2015)




[7]    Criminal Law                                                Proof of a mental disease or defect alone is not
           Innocence                                               sufficient to establish an affirmative defense of
       Criminal Law                                                insanity. Tex. Penal Code Ann. § 8.01.
           Degree of proof

       The law presumes that the accused is sane, and              Cases that cite this headnote
       the accused bears the burden of proving by a
       preponderance of the evidence that he is insane.
       Tex. Penal Code Ann. § 8.01.

                                                            [11]   Criminal Law
       Cases that cite this headnote                                   Experts
                                                                   Criminal Law
                                                                       Insanity or Other Incapacity

[8]    Criminal Law                                                Although jurors may not arbitrarily disregard
           Insanity                                                expert testimony as to insanity, neither may they
                                                                   give conclusive effect to such testimony.
       The insanity defense focuses on whether the
       accused understood the nature of his action and
       whether he knew he should not do it. Tex. Penal             Cases that cite this headnote
       Code Ann. § 8.01.


       Cases that cite this headnote                        [12]   Criminal Law
                                                                       Defense of insanity

                                                                   Whether the defense of insanity was proved is a
[9]    Criminal Law                                                decision that lies within the province of the jury,
           Insanity                                                both as to the credibility of witnesses and the
                                                                   weight of the evidence and as to the limits of the
       For the purpose of an insanity defense, if the              defense.
       accused knows that his conduct is illegal by
       societal standards, then he understands that his
       conduct is wrong, even if, due to a mental disease          Cases that cite this headnote
       or defect, he thinks his conduct is morally
       justified. Tex. Penal Code Ann. § 8.01.

                                                            [13]   Homicide
       Cases that cite this headnote                                  Insanity



[10]   Criminal Law
           Insanity




                           © 2015 Thomson Reuters. No claim to original U.S. Government Works.
McAfee v. State, --- S.W.3d ---- (2015)




       Evidence was factually sufficiency to support                         The Court of Appeals will not disturb the trial
       finding that defendant was aware his conduct was                      court's ruling on the propriety of a particular voir
       wrong when he murdered his wife, in support of                        dire question absent an abuse of discretion.
       the jury's rejection of defendant's insanity defense,
       during prosecution for murder, even though
       several experts believed defendant's disorders                        Cases that cite this headnote
       were attributable to a degenerative neurological
       disorder, the State's expert witness opined that
       defendant was not suffering from a degenerative
       neurological disorder and that he was sane at the              [16]   Jury
       time he committed the offense, defendant had a                               Examination of Juror
       history of drug and alcohol abuse that could have
       contributed to his mental disorders, several                          A voir dire question is proper if it seeks to
       witnesses testified that defendant was placed in an                   discover a juror's views on an issue applicable to
       assisted living facility due to his drug issues and                   the case.
       not due to his dementia, defendant's treating
       psychiatrist, testified that he treated defendant up
       until the month preceding the offense and he had                      Cases that cite this headnote
       never had any reason to believe that appellant
       suffer ed fr o m p sycho sis, delusions,
       hallucinations, dementia, or any degenerative
       neurological disorder or other physiological                   [17]   Jury
       reason for his mental disorders, and there was no                            Examination of Juror
       medical evidence indicating that defendant
       suffered from anything other than severe major                        Voir dire questions that misstate the law are
       depressive disorder and anxiety until after he                        improper.
       committed the murder, shot himself in the face,
       and was incarcerated. Tex. Penal Code Ann. §
       8.01.                                                                 Cases that cite this headnote


       Cases that cite this headnote
                                                                      [18]   Criminal Law
                                                                                 Arguments and Statements by Counsel

[14]   Jury                                                                  Generally, a prosecutor's statements during voir
              Discretion of court                                            dire will not constitute error unless they are
                                                                             contrary to the trial court's charge.
       The trial court has broad discretion over the
       process of selecting a jury.
                                                                             Cases that cite this headnote

       Cases that cite this headnote

                                                                      [19]   Criminal Law
                                                                                 Custody and conduct of jury
[15]   Criminal Law
           Selection and impaneling




                             © 2015 Thomson Reuters. No claim to original U.S. Government Works.

                                                               -21-
McAfee v. State, --- S.W.3d ---- (2015)




       When a term is undefined in the charge, the Court      [23]   Criminal Law
       of Appeals presumes that the jury attaches a                      Reception of evidence
       common understanding to the meaning of the                    Criminal Law
       term.                                                             Evidence wrongfully obtained

                                                                     When a trial court makes explicit fact findings
       Cases that cite this headnote                                 when ruling on a motion to suppress, the Court of
                                                                     Appeals must determine whether the evidence
                                                                     viewed in the light most favorable to the trial
                                                                     court's ruling supports the fact findings.
[20]   Criminal Law
           Impaneling jury in general
                                                                     Cases that cite this headnote
       A trial court's erroneous ruling on issues relating
       to questioning a venire panel about its
       understanding of the burden of proof is
       non-constitutional error subject to a harm             [24]   Criminal Law
       analysis. Tex. R. App. P. 44.2(b).                                Review De Novo
                                                                     Criminal Law
                                                                         Evidence wrongfully obtained
       Cases that cite this headnote
                                                                     The Court of Appeals reviews motions to
                                                                     suppress pursuant to a bifurcated standard under
                                                                     which the trial court's determinations of historical
[21]   Criminal Law                                                  facts and mixed questions of law and fact that rely
           Impaneling jury in general                                on credibility are granted almost total deference
                                                                     when supported by the record; however, for
       The trial court's error, if any, in permitting the            questions of law or mixed questions of law and
       prosecution to define the word “wrong” during                 fact that do not depend on the evaluation of
       voir dire by using a commonly accepted definition             credibility and demeanor, the Court reviews the
       of the term that was broader than the definition set          trial court's ruling de novo.
       out by caselaw did not constitute reversible error,
       during murder prosecution; the error did not have
       a substantial or injurious effect or influence the            Cases that cite this headnote
       verdict against defendant.


       Cases that cite this headnote                          [25]   Criminal Law
                                                                         Trial judge as sole arbiter of credibility

                                                                     At a suppression hearing, the trial court is the sole
[22]   Criminal Law                                                  trier of fact and judge of the credibility of the
           Reception of evidence                                     witnesses and the weight to be given their
                                                                     testimony.
       In reviewing a trial court's ruling on a motion to
       suppress, appellate courts must view the evidence
       in the light most favorable to the trial court's              Cases that cite this headnote
       ruling.


       Cases that cite this headnote                          [26]   Criminal Law
                                                                         Credibility of witnesses in general




                            © 2015 Thomson Reuters. No claim to original U.S. Government Works.
McAfee v. State, --- S.W.3d ---- (2015)




       The trial court may choose to believe or                      The client can waive the attorney-client privilege
       disbelieve any part or all of a witness's testimony.          by voluntarily disclosing or consenting to the
                                                                     disclosure of a significant part of the privileged
                                                                     matter. Tex. R. Evid. 503(a), 511(1).
       Cases that cite this headnote

                                                                     Cases that cite this headnote

[27]   Criminal Law
           Illegally obtained evidence
       Criminal Law                                           [31]   Privileged Communications and Confidentiality
           Evidence wrongfully obtained                                   Presumptions and burden of proof

       The Court of Appeals sustains the trial court's               A party asserting a privilege has the burden of
       ruling on a motion to suppress if it is reasonably            showing that the privilege applies.
       supported by the record and correct on any theory
       of law applicable to the case.
                                                                     Cases that cite this headnote

       Cases that cite this headnote

                                                              [32]   Privileged Communications and Confidentiality
                                                                          Presumptions and burden of proof
[28]   Privileged Communications and Confidentiality
            Elements in general; definition                          Once the privilege has been established, the party
                                                                     seeking to establish waiver of the privilege has the
       The scope of the attorney-client privilege as set             burden of going forward with evidence that
       out in the rules of evidence is limited to                    supports a finding of waiver.
       communications made by a client seeking legal
       advice from a lawyer in her capacity as such and
       the communication must relate to the purpose for              Cases that cite this headnote
       which the advice is sought. Tex. R. Evid.
       503(b)(1).

                                                              [33]   Privileged Communications and Confidentiality
       Cases that cite this headnote                                      Waiver of privilege

                                                                     Waiver of a privilege may be inferred from the
                                                                     totality of the circumstances and reasonable
[29]   Privileged Communications and Confidentiality                 inferences.
            Definition of ‘privilege‘

       In general, privileges are exclusionary rules of              Cases that cite this headnote
       evidence that may be used to suppress relevant
       evidence.

                                                              [34]   Privileged Communications and Confidentiality
       Cases that cite this headnote                                      Waiver of privilege



[30]   Privileged Communications and Confidentiality
            Waiver of privilege


                            © 2015 Thomson Reuters. No claim to original U.S. Government Works.
McAfee v. State, --- S.W.3d ---- (2015)




       The disclosure of the privileged material by           [38]   Privileged Communications and Confidentiality
       defense counsel is relevant in determining waiver                  Relation of Attorney and Client
       of the attorney-client privilege. Tex. R. Evid. 503.          Privileged Communications and Confidentiality
                                                                          Particular cases

       Cases that cite this headnote                                 The attorney-client privilege did not apply to bar
                                                                     evidence of the telephone calls defendant made to
                                                                     his friend, who was also an attorney, on the night
                                                                     of the murder, during murder prosecution;
[35]   Privileged Communications and Confidentiality                 defendant and attorney were long-time friends,
            Presumptions and burden of proof                         defendant called attorney's cellular telephone, not
                                                                     his legal office, attorney generally did not practice
       After the State has gone forward with evidence                criminal law, attorney had never previously
       supporting waiver of the attorney-client privilege,           represented defendant in a criminal matter, and
       the party claiming the privilege may find it wise             the communications were not made to facilitate
       to present evidence of no waiver. Tex. R. Evid.               legal services. Tex.R. Evid. 503(a)(5), (b)(1).
       503.

                                                                     Cases that cite this headnote
       Cases that cite this headnote


                                                              [39]   Constitutional Law
[36]   Criminal Law                                                      Presumptions and Construction as to
           Privilege                                                 Constitutionality
                                                                     Constitutional Law
       The Court of Appeals reviews the trial court's                    Intent of and Considerations Influencing
       decision on the applicability of a privilege for an           Legislature
       abuse of discretion.
                                                                     In addressing a constitutional challenge, the Court
                                                                     of Appeals must begin with the presumption that
       Cases that cite this headnote                                 the statute is valid and that the Legislature did not
                                                                     act arbitrarily or unreasonably in enacting it.


[37]   Criminal Law                                                  Cases that cite this headnote
           Witnesses
       Criminal Law
           Reception of evidence
                                                              [40]   Constitutional Law
       The Court of Appeals can reverse a decision                       Burden of Proof
       concerning waiver of the attorney-client privilege
       only if the trial court applied an erroneous legal            The party challenging the statute has the burden
       standard, or when no reasonable view of the                   to establish its unconstitutionality.
       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. Tex.            Cases that cite this headnote
       R. Evid. 503.


       Cases that cite this headnote                          [41]   Constitutional Law
                                                                         Facial invalidity




                            © 2015 Thomson Reuters. No claim to original U.S. Government Works.
       To prevail on a facial challenge, a party must       Panel consists of Justices Keyes, Higley, and Brown.
       establish that the statute always operates
       unconstitutionally in all possible circumstances.


       Cases that cite this headnote                                                   OPINION



[42]   Constitutional Law
           Encroachment in general                          Evelyn V. Keyes, Justice

       The Texas Constitution's separation of powers        *1 A jury convicted appellant, Kenneth Cooper McAfee, of
       provision ensures that power granted one branch      the murder of his wife, Janet McAfee, and the trial court
       may be exercised by only that branch, to the         assessed his punishment at confinement for ninety-nine years
       exclusion of others, and therefore requires that     and a $10,000 fine.1 In four issues, appellant argues that (1)
       any attempt by one department of government to       the jury erred in rejecting his insanity defense because a
       interfere with the powers of another is null and     preponderance of the evidence supported it; (2) the trial court
       void. Tex. Const. art. 2, § 1.                       erred in overruling his objection to the State's definition of
                                                            “wrong” in the context of discussing the insanity defense
                                                            during voir dire; (3) the trial court erred in denying his motion
       Cases that cite this headnote                        to suppress the testimony of Charles Storer, an attorney and
                                                            friend whom he called in the course of committing the offense;
                                                            and (4) the consolidated court costs were unconstitutional
                                                            because they included a crime stoppers fee that does not fund
                                                            any costs of the court's function.
[43]   Constitutional Law
           Sentencing and punishment
       Constitutional Law
           Criminal Law                                     We affirm.
       Costs
           Constitutional and statutory provisions

       The statutory scheme for collection of the crime                              Background
       stoppers fee did not improperly delegate a power
       to the judicial branch that was more appropriately   Appellant and the complainant, Janet McAfee, married in
       attached to the executive branch, as argued by       1991. In 2006, appellant began to suffer from various health
       defendant; funds collected for the crime stoppers    problems. These issues led to the breakup of appellant's
       assistance fund were sufficiently related to the     marriage to Janet, and the two were in the process of getting
       collection of evidence in criminal cases to          divorced. The record contains conflicting evidence regarding
       constitute legitimate criminal justice activities.   the nature of appellant's physical and mental health issues and
       Tex. Loc. Gov't Code Ann. §§ 133.102(a)(1),          includes testimony that appellant suffered from drug and
       (e)(2), 414.001(2); Tex. Crim. Proc. Code Ann.       alcohol abuse, depression, anxiety and panic attacks,
       art. 102.013.                                        degenerative neurological disease, and dementia. It is
                                                            undisputed that at the time of the offense appellant was living
                                                            in an assisted living facility.
       1 Cases that cite this headnote

                                                            A. The Commission of the Offense
                                                            On May 8, 2010, Janet picked appellant up to attend the Art
                                                            Car Parade, and the two spent the day together viewing the
                                                            parade and later returning to the home they had shared and
                                                            where Janet still lived. That evening, a panic alarm in the
On Appeal from the 339th District Court, Harris County,     home was activated, and Houston Police Officer R.
Texas, Trial Court Case No. 1262341                         Nellippallil was dispatched to the home to investigate. He was
                                                            met by appellant, who told Officer Nellippallil that everything
Attorneys and Law Firms                                     was fine and it was a false alarm. Officer Nellippallil testified
                                                            that appellant, whom he believed to be the homeowner,
Jessica A. Caird, Devon Anderson and Alan Curry, for The    appeared normal and understood his questions. Officer
State of Texas.                                             Nellippallil left the home believing nothing was wrong.

Jani Maselli Wood, for Kenneth Cooper McAfee.
McAfee v. State, --- S.W.3d ---- (2015)




Janet's alarm company also contacted the police regarding the      saw that she was lying on her side, unmoving, and the officer
alarm, and a second officer, Officer B. Scott, was dispatched      observed blood stains. Appellant continued to insist that Janet
to the home later that evening. As he approached the house, he     was fine and that she was just sleeping, and he refused to
met one of Janet's neighbors who expressed her concern for         allow the police to enter. At one point, appellant also told the
Janet, stating that she had also received an alarm call            officers that he wanted to kill himself, but Officer Scott
regarding the house. Officer Scott asked the neighbor to call      testified that he seemed calm, even while making his suicide
Janet, and he rang the door bell. Appellant eventually             threat.
answered the door and again told Officer Scott that everything
was fine and it was a false alarm. As Officer Scott returned to
his vehicle, Janet's neighbor stopped him and explained that       Eventually, the police dispatched a SWAT team and a Crisis
she knew Janet and appellant were having marital issues and        Intervention Response Team (“CIRT”) to the home. Michael
she was concerned for Janet's safety.                              Hawkins, a clinician with the CIRT, attempted to
                                                                   communicate with appellant. Hawkins testified that his
                                                                   training and experience as a licensed professional counselor
Officer Scott then returned to the door and asked to speak with    and his crisis intervention training equipped him to recognize
Janet directly. Appellant showed his driver's license to the       people suffering from psychosis, hallucinations, and other
officer and claimed that Janet was sleeping and could not          acute mental illness. He stated that when he arrived on the
come to the door. When Officer Scott insisted on seeing Janet,     scene, he spoke with appellant over the phone and attempted
appellant refused to wake her and refused to allow the officer     to get appellant to exit the house. Hawkins testified that while
inside to check on her. Appellant asked if Officer Scott had a     he was speaking with appellant, he noticed that appellant
search warrant requiring him to give the officer access to the     seemed sad and depressed. In fact, appellant told Hawkins that
home. As Officer Scott was having this discussion with             he was depressed, and Hawkins understood from his
appellant, he saw Janet come into view from around the             discussion with appellant that the problems had something to
comer, and he saw that she was staggering. Officer Scott asked     do with money. However, Hawkins did not observe any speech
her if she was okay, and she told him that she was not and fell    or behavior that indicated that appellant was suffering from
to the floor. At that point, appellant immediately shut the door   psychosis or hallucinations. Rather, appellant was
in Officer Scott's face and locked it. Officer Scott did not see   communicating clearly and his thoughts and words seemed to
any blood or obvious wounds on Janet at that time, but he          be “in order” and made sense in context.
informed dispatch of the situation and requested that Officer
Nellippallil return to provide backup so that they could
investigate further.                                               Hawkins also testified that, while he was on the phone with
                                                                   appellant, appellant asked to speak with his attorney.
                                                                   Appellant initially indicated that he would come out of the
*2 While Officer Scott was discussing the situation with           home after his attorney arrived, and appellant later stated that
dispatch, he observed appellant leave the house with his dog.      he would hurt himself if the police entered the home.
Officer Scott approached appellant, questioning him about          Appellant's attorney, Charles Storer, arrived on the scene at
Janet's condition and asking why he shut the door so abmptly.      some point and spoke to appellant on the phone.
Appellant told him that Janet had been drinking and was
feeling sick as a result. Officer Scott believed that appellant
initially had planned to leave the home, because he was            While Hawkins was talking with appellant, the SWAT team
carrying keys to the vehicle and tried to start the engine, but    arrived and Officer M. Scales used a magnification scope to
after Officer Scott approached him, appellant put the dog in       look into the bedroom where Janet was lying on the bed.
the car and then went back inside the house.                       Officer Scales did not observe any signs of life from Janet, but
                                                                   he saw appellant come into the room and lie down next to his
                                                                   wife. He saw appellant raise one of Janet's legs and let it fall
Officer Scott testified that appellant seemed normal and spoke     back onto the bed, and Officer Scales stated that appellant
to him calmly, trying to convince him that everything was          appeared resigned at that point. As the other members of the
okay and that he could leave. However, Officer Scott remained      SWAT team entered the home, Officer Scales saw appellant
concerned about Janet's safety and waited outside the house        shoot himself in the head. Appellant was taken to a local
for backup to arrive. When Officer Nellippallil arrived, they      hospital for treatment of his gunshot wound, but Janet was
once again rang the door bell. Appellant did not answer the        declared dead at the scene. An autopsy later revealed that she
door. However, one of the officers spoke to appellant by           had been shot four times, and physical evidence in the house
phone while the other walked around the outside of the house       indicated that she had been shot somewhere outside the
and was able to see of Janet through a bedroom window. He          bedroom, had at one point been walking around after being

                             © 2015 Thomson Reuters. No claim to original U.S. Government Works.
McAfee v. State, --- S.W.3d ---- (2015)




shot, and had been dragged through the kitchen and into the             following his medical leave, but he was unable to pass the
hallway. Detectives also discovered bloody towels in a clothes          required tests and never returned to active employment. Steets
hamper concealed by the shower curtain.                                 was not aware of any problems between appellant and Janet,
                                                                        and he was not aware that appellant had ever demonstrated
                                                                        any anger or violence issues prior to 2006.
*3 Houston Police Officer T. Moore was assigned to guard
appellant while he was at the hospital, and he testified that he
heard a nurse ask appellant why he was in the hospital.                 Janet's mother, Rosemary Foltyn, testified regarding
Appellant told the nurse he was there because he shot his wife.         appellant's relationship with Janet. She stated that they married
An HPD homicide investigator likewise visited the hospital to           in 1991. In 2006, appellant had a breakdown involving a panic
get appellant's statement. Appellant asked him how much time            attack at work and subsequent treatment for depression, which
he could get for murder and then decided to wait to give a              Foltyn was aware had caused Janet and appellant's marriage to
statement until his attorney was present. As part of the                suffer. Foltyn also testified that appellant had a history of
investigation, the officer requested to view appellant's mail           alcohol and drug abuse. She recalled an incident in 2009 when
while he was confined in the Harris County Jail. A few days             she visited Janet and they returned from an outing to find
after appellant arrived at the jail, he sent a letter to his ex-wife,   appellant passed out and naked in the hallway, incapacitated
Brenda McAfee, in which he wrote, “I'd say that insanity will           due to alcohol and drug use. Foltyn also recounted an incident
be an interesting angle in the trial.”                                  in May 2009 when she became concerned for appellant's
                                                                        safety while Janet was out of the country. When she called
                                                                        him, he sounded intoxicated, so she called a neighbor to check
Appellant was tried for Janet's murder, and he asserted the             on him, and he was subsequently taken to the hospital for an
affirmative defense of insanity.                                        “overdose situation.”


B. Facts Relevant to Voir Dire                                          *4 Foltyn believed that Janet had given appellant an ultimatum
During its voir dire examination of the venire, the State               to “choose between the booze, drugs, your alcohol, or I'm
explained the elements of the affirmative defense of insanity           leaving.” Instead, appellant entered the assisted living facility
in an attempt to ascertain whether the potential jurors would           because “someone had to take care of him; and [Janet] would
properly apply the law. The prosecutor explained that there             not bring him home.” Foltyn testified that this was because of
were essentially three prongs to the insanity defense and stated        appellant's drug use and Janet's concern that he “would be
that a defendant asserting the insanity defense would be                doing the same old thing.”
required to establish that he was suffering from a severe
mental disease or defect and that there was a causal connection
between the mental illness and the crime. Finally, the                  Janet and appellant's neighbor, Betty McCagnan, likewise
prosecutor stated, “Third prong[:] Did the defendant know that          testified about the overdose incident. She testified that Foltyn
his conduct was wrong? Wrong is defined as legally, socially            called her and asked her to go check on appellant. When
or morally impermissible.” Appellant objected, stating, “There          McCagnan arrived at appellant's home, she discovered him in
is no legal definition for wrong, and I object to her inserting         the living room looking “extremely pale” with “some bruising
her definition. Because since there is no legal definition, then        along his legs.” She understood that appellant had “[t]aken a
it's up to the jury.” The State replied that it used the definition     lot of pills,” so she called an ambulance, and appellant was
“from case law.” Appellant argued, “It's not in the statute             taken to the hospital. McCagnan also testified that Janet had
law.” The trial court overruled the objection.2                         given appellant an ultimatum because she wanted him “to
                                                                        clean it up, get on with it, and she wasn't going to be around to
                                                                        watch him destroy himself.” McCagnan testified that Janet
C. Facts Relevant to Appellant's Insanity Defense                       eventually filed for divorce and that appellant went to live in
A significant portion of the trial involved evidence relevant to        an assisted living facility because Janet wanted “to protect
appellant's mental state before, during, and after the offense          him” and “didn't want him to have access to the internet so that
and the validity of his insanity defense. Appellant's former            he could order prescription drugs, or whatever drugs, whatever
supervisor, Paul Steets, testified that appellant had worked at         he was ordering.”
a brokerage firm until September 2006, when he had a panic
attack while at work. Following that incident, appellant was
unable to focus and could not complete his work, so he went             McCagnan testified that appellant left the first assisted living
on medical leave. Steets testified that appellant needed to             facility, lived somewhere else for a time, and eventually
complete some continuing education courses to return to work            moved into another assisted living facility. She recalled that

                               © 2015 Thomson Reuters. No claim to original U.S. Government Works.
McAfee v. State, --- S.W.3d ---- (2015)




there were occasions during this time when Janet did not know        filed a counterpetition on appellant's behalf in the divorce
where appellant was, and Janet was afraid that appellant might       proceeding.
hurt her. McCagnan stated that Janet sent a letter to her and
other neighbors at one point informing them that a friend had
helped appellant escape from the “supervised facility” where         Amaldo Mariano, the assistant director of appellant's assisted
he had been staying and that she did not know where he was.          living facility, testified that his facility assisted its residents in
Janet's letter stated that she was afraid because appellant had      their daily living by providing meals, housekeeping, and
threatened to kill her before, and she had a letter from his         medication management. The facility was not a treatment
psychiatrist explaining that he was a danger to himself and          facility or a “lockup” facility, so it was not an appropriate
others. Janet informed her neighbors that she had installed an       place for someone suffering from dementia or cognitive
alarm system and new locks and asked that they call the police       disorders. He recalled that, at the time appellant was admitted,
if they saw anyone at the house while she was out of the             appellant indicated that he suffered from depression. Mariano
country.                                                             did not recall appellant claiming that he suffered from
                                                                     dementia. Mariano testified that appellant told him about
                                                                     various aspects of his relationship with Janet, including
Appellant's friend, Charles Storer, testified regarding his          appellant's statement that she had threatened to report his drug
relationship with appellant. Storer testified that he had known      usage to his employer and his statements that she had made
appellant for about twenty-five years and that their relationship    various other threats against him. Mariano testified that
had begun as a friendship. Storer described himself as               appellant fed, dressed, and groomed himself without
“probably [appellant's] closest friend.” Storer maintained a         assistance, that he acted alert and did not display any cognitive
friendship with appellant in which they would visit socially,        issues, and that appellant seemed to function fine while he was
attending special events or going out to eat as often as twice a     in the facility. Mariano also agreed that the nature of the
week. However, following appellant's breakdown at work in            facility necessarily limited appellant's access to prescription
2006, Storer noticed a change in appellant and did not see him       drugs and alcohol.
as often socially. He testified that appellant's personality
underwent a drastic change— appellant went from an
outgoing, positive person to a withdrawn and                         Appellant's treating psychiatrist, Dr. Scott Sprabery, testified
uncommunicative person almost overnight.                             that he treated appellant from September 2007 until April
                                                                     2010, approximately one month before the murder. Dr.
                                                                     Sprabery testified that his main practice involved prescribing
After 2006, Storer tried to maintain contact with appellant but      medication and medication management. In September 2007,
only saw him once or twice a month. Storer testified that he         when he first saw appellant, appellant was taking an
visited appellant in the assisted living facility and that, at one   antidepressant, two anti-anxiety medications, an antipsychotic,
point, appellant called him to come remove him from the              a stimulant, and a sleep aid, and he was undergoing
facility. Storer had concerns about the first assisted living        electroconvulsive therapy for depression. Dr. Sprabery
facility where appellant lived, in part because of the strict        testified that appellant presented with symptoms of depression,
regulations in place there and because of the other kinds of         anxiety, poor energy, and “continuing crying spells.” He
people living there. Appellant told Storer that he did not like      testified that, at the time he first saw him, appellant had been
the facility and asked Storer to pick him up. Storer brought         out of work for almost a year due to his worsening depression
appellant home with him and allowed appellant to live with           and had had two hospitalizations from which he was still
him and his wife for a few weeks. However, this arrangement          trying to recover.
ended when appellant overdosed and had to be taken back to
the hospital.
                                                                     Dr. Sprabery testified that while appellant was hospitalized
                                                                     prior to coming into his care appellant exhibited “psychotic
*5 Storer testified that he was representing appellant pro bono,     features,” such as delusions that there was something wrong
without a formal, written agreement, in his divorce from Janet       with his body or believing that he had been poisoned. After
at the time of the murder and that he had “reservations” about       completing his own evaluation of appellant, Dr. Sprabery
the way Janet was treating appellant with regard to the              diagnosed appellant as having “major depressive disorder,
divorce. He believed that Janet was trying to take advantage         recurrent, severe” and also determined that appellant had a
of appellant and that, although Janet had tried to help              panic disorder. Dr. Sprabery subsequently modified appellant's
appellant for a while, she had essentially abandoned him.            medications multiple times and took appellant off of his
However, Storer had never heard appellant say anything               antipsychotic medication prior to appellant's removal to an
disparaging about Janet. Four days before the murder, Storer         assisted living facility.

                              © 2015 Thomson Reuters. No claim to original U.S. Government Works.
McAfee v. State, --- S.W.3d ---- (2015)




                                                                     psychiatrist, evaluated appellant on June 16, 2010. He
                                                                     diagnosed appellant with a cognitive disorder and severe
Dr. Sprabery also testified that appellant's hospital records        major depression that manifested itself with “psychotic
indicated that he had a long-term stimulant addiction over           features.” Dr. Pollock explained that this meant that appellant's
approximately twenty years of his adult life and that he had         disorder was accompanied by a break with reality and an
concerns about prescribing stimulants for someone with               inability to judge or analyze real world events properly. Dr.
appellant's history. He stated that appellant never presented        Pollock also determined that appellant suffered from a
with or complained of any psychosis or delusions while under         neurological disease of the brain and central nervous system
his care. Dr. Sprabery also testified that appellant never           and that he suffered from dementia as well. Dr. Pollock
informed him that he had any addiction to alcohol. If Dr.            testified that appellant's disorders were aggravated by stress
Sprabery had suspected alcohol abuse, he would have been             and that exposure to severe stress could cause him to develop
very concerned because the combined effects of alcohol with          psychotic behavior. Dr. Pollock acknowledged that his opinion
some of the medications appellant was taking could have been         that appellant suffered from a vascular neurocognitive disorder
very dangerous. Dr. Sprabery acknowledged that long-term             conflicted with the opinion of appellant's treating psychiatrist,
use of methamphetamines and alcohol can cause depression,            who had found no neurological reasons for appellant's
and he also stated that amphetamine use can cause memory             depression, despite reviewing the same MRI scans on which
deficits and change brain chemicals when used for extensive          his own opinion was based.
periods of time, as appellant had done over the course of
twenty years.
                                                                     Dr. David Axelrad testified as appellant's expert psychiatrist
                                                                     at trial. He reviewed extensive documentation regarding
*6 Dr. Sprabery's last appointment with appellant occurred           appellant's health and the reports of other doctors who had
less than a month before the murder. Appellant complained of         treated appellant, and he spent several hours meeting with
persistent depression and sleep difficulties. Appellant did not      appellant. His first meeting with appellant occurred on June 7,
demonstrate or complain of psychotic behavior, hallucinations,       2010, and he also met with appellant on April 6, 2011,
or delusions.                                                        February 29, 2012, and May 1, 2012. Dr. Axelrad prepared a
                                                                     lengthy report expressing his finding that, on the night of the
                                                                     offense, appellant suffered from “major depressive disorder,
Dr. Jamal Rafique, the staff psychiatrist for the Harris County      severe, with psychotic and melancholy features” and a “major
Jail, testified regarding the jail's records of appellant's mental   vascular neurocognitive disorder with significant behavioral
health. When appellant first arrived in the jail in 2010 after       disturbance.”
Janet's murder, he underwent an initial assessment. Appellant
did not report any delusions or hallucinations. In May 2010,
a psychologist working with the mental health unit of the jail       Dr. Axelrad testified that appellant suffered from a psychotic
diagnosed appellant with major depressive disorder without           episode on the night he committed the offense, which mean
psychosis. Appellant's health records also demonstrated that he      that appellant could not know what was true or not true and
had a traumatic brain injury as a result of the self-inflicted       would not know right from wrong. Dr. Axelrad opined that
gunshot wound at the time of the murder.                             appellant did not know right from wrong when he shot his
                                                                     wife. He testified that it was possible for appellant to
                                                                     demonstrate clarity of thought and realize his acts were wrong
Appellant's first “psychiatric incident” occurred in January         after the psychotic episode was over.
2011, after he had been incarcerated for approximately eight
months. Appellant experienced delusions that people were
chasing him. At that time, appellant was referred to the mental      *7 Dr. Mark Moeller testified as the State's expert psychiatrist.
health unit for closer monitoring and mental health treatment.       Dr. Moeller met with appellant on two occasions and spent
When Dr. Rafique first met with appellant in January 2011, he        about four hours reviewing appellant's medical records. He
diagnosed appellant as having dementia and also believed he          testified that there was no causal connection between
might have a psychotic illness. Dr. Rafique was not able to          appellant's disorders and the murder. Dr. Moeller likewise did
confirm his “working diagnosis” of dementia with possible            not believe that appellant was suffering from dementia and did
psychosis because he never met with appellant again.                 not agree with appellant's neurologist and neuropsychiatrist
                                                                     that appellant was suffering from a major neurovascular
                                                                     disorder; rather, after viewing appellant's MRIs and other
Dr. Richard Pollock, a neuropsychologist who was hired by            records, he believed the amount of degeneration shown in the
the defense and worked closely with appellant's expert               brain was normal.

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McAfee v. State, --- S.W.3d ---- (2015)




                                                                    wife. Storer then drove to the house where appellant had shot
                                                                    Janet and made a statement to a police officer at the scene.
Dr. Axelrad testified regarding the shortcomings in Dr.
Moeller's expert report and opinion testimony. He stated that
Dr. Moeller's opinion did not “address the substantive deficits     Regarding the specific legal advice that he gave appellant on
in [appellant's] cognitive abilities that were identified by the    the phone that night, Storer testified that appellant told him
two latest neuropsychologists who evaluated” appellant and          that “they were going to execute him for what he had done to
who were experts in their field.                                    his wife,” and Storer told him that it was not a capital crime
                                                                    and “they're not going to try to kill you over it.” Storer
                                                                    acknowledged that he would have given the same advice to a
D. Facts Relevant to Admission of Storer's Phone                    client or a friend.
Conversations with Appellant on the Evening of the Murder
The State called Charles Storer, appellant's friend and divorce
attorney, during its case-in-chief. However, appellant moved        Storer also acknowledged that he informed the police that he
to suppress Storer's testimony based on an assertion of             never represented appellant as his criminal lawyer. According
attorney-client privilege, and the trial court held a hearing to    to the statement that Storer made to the police, the majority of
determine whether appellant's statements to Storer were             his conversation with appellant involved appellant's
covered by the privilege.                                           representations that he was going to kill himself and Storer's
                                                                    attempts to talk him out of committing suicide. Storer
                                                                    acknowledged that when he gave his statement to the police
At the suppression hearing, Storer testified that appellant         regarding his conversations with appellant, it never occurred
called him on the evening that he murdered Janet and admitted       to him to assert the attorney-client privilege on appellant's
that he had “done something horrible” and that he had killed        behalf. However, the evidence also demonstrated that the
his wife. Storer stated that the phone conversation was private,    police were aware that Storer had acted as appellant's attorney
that appellant was talking to him as his attorney, that he gave     in his divorce proceedings, and appellant repeatedly told the
appellant legal advice, and that when he arrived at the scene       SWAT officers that he wanted to talk to his attorney and that
later in the evening, he introduced himself to the police as        he would not come out of the house until his attorney arrived.
appellant's attorney. Storer further testified that appellant had   Storer further testified that he had helped facilitate appellant's
not waived his attorney-client privilege.                           hiring of a criminal defense attorney, and he had maintained
                                                                    a friendship with appellant while he was incarcerated in the
                                                                    Harris County Jail.
On cross-examination, the State established that Storer had
been an attorney for approximately thirty years and that his
main practice areas were family law, probate, and personal          *8 At the suppression hearing, appellant argued that Storer's
bankruptcy. Several years after he met appellant, Storer            testimony regarding his conversations with appellant on the
represented appellant in his divorce from his first wife. After     evening of the murder was inadmissible because the
that time, Storer maintained a personal, social relationship        conversations were protected by the attorney-client privilege.
with appellant. Storer also considered Janet a friend.              Appellant argued that, although he eventually hired
                                                                    criminal-defense counsel, at the time of the offense he did not
                                                                    have any other counsel—Storer was the only attorney he had.
Janet filed for divorce in March 2010, and Storer began to          The State argued that the purpose of the privilege was to
represent appellant in the divorce proceeding on May 4, 2010,       protect attorney-client communications pertaining to legal
approximately four days before the murder. Storer stated that       representation and that it would be an abuse of the privilege to
he and appellant had a verbal attorney-client agreement, and        protect a defendant's inculpatory statements solely on the basis
he admitted that he had never agreed to represent appellant in      that they were made to a friend who also happened to be an
any criminal matters and that he was not a criminal-defense         attorney. The State argued that there was no on-going
attorney.                                                           attorney-client relationship between Storer and appellant at the
                                                                    time of the communications, that Storer never represented
                                                                    appellant in this or any other criminal matter, and that
Storer testified that on the night of May 8, 2010, when             appellant called Storer because Storer was his best friend, not
appellant called to tell him that he had shot Janet, he             because he was a lawyer.
immediately called 9–1–1 and reported that appellant, whom
he described in the 9–1–1 call as a friend, had just shot his


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McAfee v. State, --- S.W.3d ---- (2015)




The trial court ruled that the attorney-client privilege did not    defendant is claiming that his evidence is more than sufficient
exist and denied appellant's motion to suppress.                    to support his affirmative defense, while the State's evidence
                                                                    is insufficient to rebut it.”).

Storer testified before the jury regarding his twenty-five year
friendship with appellant, just as he had in the suppression        A. Standard of Review
hearing. Regarding the night of the murder, Storer testified        [1] [2]The Texas Court of Criminal Appeals has adopted the
that he had “[m]aybe six or eight” phone conversations with         civil standard of factual-sufficiency review for challenges to
appellant. He stated that he left the scene of the murder around    the rejection of an affirmative defense because the burden of
midnight and that he visited the police station the next day to     proof is that of “preponderance of the evidence,” the same
give a statement regarding what he knew about the murder.           burden applied in civil proceedings. Id. at 671 (citing Meraz
                                                                    v. State, 785 S.W.2d 146, 149, 153–55 (Tex.Crim.App.1990)).
                                                                    In making a factual-sufficiency claim, the defendant is
Following the testimony of numerous other witnesses, during         asserting that, considering the entire body of evidence, the
the rebuttal phase of trial, the State offered the recording of     jury's adverse finding on his affirmative defense was so
the 9–1–1 call Storer made and again called him to the stand.       “against the great weight and preponderance” of the evidence
Appellant renewed his objection to the admission of Storer's        as to be manifestly unjust. Id.
testimony, which the trial court noted for the record.

                                                                    *9 [3] [4] [5]Accordingly, we must view the entirety of the
Storer testified that he called 9–1–1 “almost immediately”          evidence in a neutral light. Id. However, we “may not usurp
after his first phone conversation with appellant on the evening    the function of the jury by substituting [our] judgment in place
of the murder and then he went to the scene. He recalled that       of the jury's assessment of the weight and credibility of the
appellant told him that “that something horrible has happened,      witnesses' testimony.” Id. We may “sustain a defendant's
that he had just shot Janet.” Storer recalled that appellant had    factual-sufficiency claim only if, after setting out the relevant
“snapped,” that appellant believed he was in trouble, and that      evidence and explaining precisely how the contrary evidence
appellant wanted to commit suicide. Storer and appellant            greatly outweighs the evidence supporting the verdict, [we]
discussed where appellant wanted to be buried, and appellant        clearly state[ ] why the verdict is so much against the great
asked him to look after his son. Storer also recalled appellant's   weight of the evidence as to be manifestly unjust,
telling him that he believed his life was over and that either he   conscience-shocking, or clearly biased.” Id. If we determine
was going to spend the rest of his life in jail for killing Janet   that the evidence supporting an affirmative defense so greatly
or that he would be executed.                                       outweighs the State's contrary evidence that the verdict is
                                                                    manifestly unjust, then we may reverse the trial court's
                                                                    judgment and remand for a new trial. Id. at 672.
E. The Jury's Verdict and the Trial Court's Judgment
The jury rejected appellant's affirmative defense and found
him guilty of murder. The trial court assessed his punishment       [6] [7]Insanity is an affirmative defense, which must be proved
at ninety-nine years' confinement and assessed a $10,000 fine.      by a preponderance of the evidence. Tex. Penal Code Ann. §§
The trial court also assessed the statutorily required $133 in      2.04, 8.01 (Vernon 2011). To establish the affirmative defense
consolidated court costs.                                           of insanity, the defendant must prove “that, at the time of the
                                                                    conduct charged, the actor, as a result of severe mental disease
                                                                    or defect, did not know that his conduct was wrong.” Id. §
                                                                    8.01(a). The law presumes that the accused is sane, and the
                       Insanity Defense                             accused bears the burden of proving by a preponderance of the
                                                                    evidence that he is insane. Martinez v. State, 867 S.W.2d 30,
In his first issue, appellant challenges the factual sufficiency    33 (Tex.Crim.App.1993); see Ruffin v. State, 270 S.W.3d 586,
of the jury's rejection of his insanity defense. Stated another     591–92 (Tex.Crim.App.2008) (“Texas law ... presumes that a
way, appellant argues that he offered so much evidence in           criminal defendant is sane and that he intends the natural
support of his insanity defense and the State offered so little     consequences of his acts.”).
evidence rebutting his defense that the jury's rejection of his
affirmative defense was against the great weight and
preponderance of the evidence. See Matlock v. State, 392            [8] [9] [10]The insanity defense focuses on whether the
S.W.3d 662, 670 n. 29 (Tex.Crim.App.2013) (“Technically,            accused understood the nature of his action and whether he
a defendant's claim is not one of ‘factual sufficiency.’ ... The    knew he should not do it. Ruffin, 270 S.W.3d at 592; Bigby v.

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McAfee v. State, --- S.W.3d ---- (2015)




State, 892 S.W.2d 864, 877–78 (Tex.Crim.App.1994). In the            the inadequacies of Dr. Moeller's report and expert testimony
context of the insanity defense, the word “wrong” means              in comparison to the testimony and report of his own expert,
illegal. Ruffin, 270 S.W.3d at 592. If the accused knows that        Dr. Axelrad, who conducted a thorough evaluation of
his conduct is “illegal” by societal standards, then he              appellant and his medical records and determined that
understands that his conduct is wrong, even if, due to a mental      appellant did not know right from wrong at the time of the
disease or defect, he thinks his conduct is morally justified.       offense. Appellant also relies on evidence indicating that he
See id. Thus, proof of a mental disease or defect alone is not       had no prior criminal history, and he argues that it was not
sufficient to establish an affirmative defense of insanity. Nutter   until he became ill and his brain degenerated that he and Janet
v. State, 93 S.W.3d 130, 132 (Tex.App.–Houston [14th Dist.]          began to have marital difficulties. He argues that a
2001, no pet.); see Bigby, 892 S.W.2d at 877–78 (“The issue          preponderance of the evidence established that he was “a very
of insanity is not strictly medical. It also involves both legal     sick man”—“[a] once powerful and wealthy stockbroker
and ethical considerations.”).                                       forced to leave his home ... and go to an assisted living facility
                                                                     for dementia.”

[11]Although jurors may not arbitrarily disregard expert
testimony as to insanity, neither may they give conclusive           The record contains evidence from Dr. Rafique, the jail
effect to such testimony. Graham v. State, 566 S.W.2d 941,           psychiatrist, and appellant's expert witnesses, Dr. Axelrad and
950–51 (Tex.Crim.App.1978) (“Opinion testimony does not              Dr. Pollock, that appellant suffered from delusions, dementia,
establish material facts as a matter of law.”). The                  and possible psychosis in addition to his depression, and those
circumstances of the crime itself are also important in              doctors believed that appellant's disorders were attributable to
determining the mental state of the accused at the time of the       a degenerative neurological disorder. Dr. Axelrad opined that
commission of the offense, and evidence indicating knowledge         appellant did not know that his actions were wrong at the time
of wrongful conduct, such as an attempt to conceal                   he committed the murder. On the other hand, the State's expert
incriminating evidence or elude law enforcement, may be              witness, Dr. Moeller, opined that appellant was not suffering
considered.Id. at 951; see also Torres v. State, 976 S.W.2d          from a degenerative neurological disorder and that appellant
345, 347–48 (Tex.App.–Corpus Christi 1998, no pet.)                  was sane at the time he committed the offense, in conflict with
(holding that, in reaching its decision on insanity, jury may        the opinions of Dr. Pollock and Dr. Axelrad. Dr. Moeller's
consider circumstantial evidence, including defendant's              expert report is shorter than Dr. Axelrad's report, and Dr.
demeanor before and after committing crime, defendant's              Moeller did not place the same value on the opinions and
attempts to evade police or conceal incriminating evidence,          reports of some of the experts that Dr. Axelrad relied upon in
defendant's expressions of regret or fear of consequences of         reaching his opinion. However, this fact by itself does not
his actions, and any other possible explanations for defendant's     indicate that the jury's rejection of appellant's insanity defense
behavior).                                                           went against the great weight and preponderance of the
                                                                     evidence.

[12]Whether the defense of insanity was proved is a decision
that lies within the province of the jury, both as to the            Appellant construes the evidence as demonstrating that he was
credibility of witnesses and the weight of the evidence and as       “a very sick man” who was forced to move to an assisted
to the limits of the defense. Bigby, 892 S.W.2d at 878; see          living facility for dementia. This view of the evidence does not
also Reyna v. State, 116 S.W.3d 362, 367 (Tex.App.–El Paso           account for the testimony of Rosemary Foltyn, Betty
2003, no pet.) (“The issue of insanity at the time of the offense    McCagnan, Charles Storer, and Dr. Sprabery that appellant
lies within the province of the jury, and we will overturn its       had a history of drug and alcohol abuse that could also have
decision only where insanity is undisputed or resolved to one        contributed to his mental disorders. Foltyn testified that
end of the spectrum outside the realm of discretion.”).              appellant had a history of drug and alcohol abuse, and Dr.
                                                                     Sprabery testified regarding the negative effects drug and
                                                                     alcohol abuse could have had on appellant's health.
B. Analysis                                                          Furthermore, several witnesses, including Mariano,
*10 [13]Here, appellant argues that the great weight and             McCagnan, and Foltyn, testified that appellant was not placed
preponderance of the evidence presented at trial supports his        in assisted living due to dementia, but rather as a result of his
claim of insanity, and, therefore, the jury erred in rejecting his   drug issues.
affirmative defense. Appellant argues that the State's expert
witness, Dr. Moeller, did not conduct a thorough investigation
and “only reiterated the facts of the offense in determining         There was no medical evidence indicating that appellant
[appellant] was sane at the time of the offense.” He points to       suffered from anything other than severe major depressive

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McAfee v. State, --- S.W.3d ---- (2015)




disorder and anxiety until after he committed the murder, shot      After the officers discovered the crime, appellant insisted on
himself in the face, and was incarcerated in the Harris County      contacting his lawyer and refused to leave his house. Hawkins,
Jail. Appellant's treating psychiatrist, Dr. Sprabery, testified    the crisis intervention counselor, testified that appellant did
that he treated appellant up until the month preceding the          not demonstrate any of the characteristics of someone
offense and he had never had any reason to believe that             experiencing psychosis or hallucinations. At the hospital,
appellant suffered from psychosis, delusions, hallucinations,       appellant told a nurse that he had shot his wife, and he refused
dementia, or any degenerative neurological disorder or other        to give a statement to police regarding the incident before
physiological reason for his mental disorders. Dr. Rafique, the     consulting with his lawyer. This evidence regarding appellant's
jail psychiatrist, testified that the jail records demonstrated     demeanor before, during, and after the crime, his attempts to
only that appellant suffered from major depressive disorder         evade police or conceal incriminating evidence, and his
until January 2011, months after the murder, at which time          expressions of regret or fear for the consequences of his
appellant began experiencing symptoms of psychosis and              actions is relevant to the jury's decision to reject appellant's
dementia. Dr. Pollock, one of appellant's expert witnesses,         insanity defense. See Torres, 976 S.W.2d at 347–48; see also
conceded that his diagnosis of degenerative neurological            Robinson v. State, 236 S.W.3d 260, 267–68
disorder conflicted with that of appellant's treating               (Tex.App.–Houston [1st Dist.] 2007, pet. ref'd) (holding that
psychiatrist, who did not believe appellant's disorders were the    evidence of flight may demonstrate consciousness of guilt).
result of a physical disorder. Thus, while there were               Finally, the evidence from multiple witnesses regarding
conflicting expert opinions, we cannot say the overwhelming         appellant's history of drug abuse and evidence that appellant
weight of the medical evidence indicated that appellant             and Janet were divorcing provide other possible explanations
suffered from dementia or psychosis at the time he committed        for appellant's behavior. See Torres, 976 S.W.2d at 347–48.
the murder. See Tex. Penal Code Ann. § 8.01(a) (providing
that affirmative defense of insanity applies to actor who did
not know his conduct was wrong “as a result of severe mental        We conclude that there was sufficient evidence from which the
disease or defect”).                                                jury could determine that appellant was aware at the time he
                                                                    murdered Janet that his conduct was wrong. See Tex. Penal
                                                                    Code Ann. § 8.01(a); Bigby, 892 S.W.2d at 877–78 (stating
*11 Furthermore, contrary to appellant's assertion, it is proper    that insanity defense focuses on whether accused understood
for the jury to consider the circumstances of the crime itself.     nature of his action and whether he knew he should not do it).
See Graham, 566 S.W.2d at 950 (stating that although jurors         We cannot conclude that the evidence supporting appellant's
may not arbitrarily disregard expert testimony as to insanity,      affirmative defense so greatly outweighs the State's contrary
neither may they give conclusive effect to such testimony); see     evidence that the jury's verdict was manifestly unjust. See
also Torres, 976 S.W.2d at 347–48 (holding that, in reaching        Matlock, 392 S.W.3d at 671–72.
its decision on insanity, jury may consider circumstantial
evidence, including defendant's demeanor before and after
committing crime, defendant's attempts to evade police or           We overrule appellant's first issue.
conceal incriminating evidence, defendant's expressions of
regret or fear of consequences of his actions, and any other
possible explanations for defendant's behavior).
                                                                        The State's Definition of “Wrong” During Voir Dire

The record indicates that, on the night of the offense, appellant   In his second issue, appellant argues that the trial court erred
appeared normal when Officers Nellipallil and Scott came to         in overruling his objection to the State's use of an improper
investigate the security alarm and he told them it was a false      definition of “wrong” during voir dire.
alarm. He lied to them and attempted to conceal Janet from
them, closing the door in Officer Scott's face when Janet
stumbled into view, and the officers originally believed his lie.   Here, the State defined the term “wrong” in the context of its
When the officers returned to the house to check on Janet,          attempt to ascertain whether the potential jurors would
appellant asked for a warrant before he would allow them to         properly apply the law of insanity. The prosecutor stated that
enter the home. Appellant tried to flee with his car keys and       “[w]rong is defined as legally, socially or morally
his dog, but he left the dog in the vehicle and returned to the     impermissible.” Appellant objected, stating, “There is no legal
house when he was confronted by the officers.                       definition for wrong, and I object to her inserting her
                                                                    definition. Because since there is no legal definition, then it's
                                                                    up to the jury.” The State replied that it used the definition


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McAfee v. State, --- S.W.3d ---- (2015)




“from case law.” Appellant argued, “It's not in the statute           that “inquiry into a prospective juror's understanding
law.” The trial court overruled the objection.                        of what proof beyond a reasonable doubt means
                                                                      constitutes a proper question regardless of whether
                                                                      the law specifically defines that term. The jury's
*12 On appeal, appellant argues that the trial court erred in         ability to apply the correct standard of proof remains
allowing the State to give “its own definition of wrong” and          an issue in every criminal case”).
that the prosecutor's statement of law regarding the definition
of “wrong” was incorrect. See Thompson v. State, 95 S.W.3d
537, 541 (Tex.App.–Houston [1st Dist.] 2002, no pet.)
(holding that voir dire questions that misstate law are               [19] [20]Rather, when a term is undefined in the
improper). Appellant argues that, by overruling his objection,        charge, we presume that the jury “attach[ed] a
“the [trial] court gave the definition its imprimatur” and            common understanding to the meaning of the term [
impinged on the jury's ability to assign the term any meaning         ].” Smith v. State, 297 S.W.3d 260, 275
which is acceptable in common parlance.                               (Tex.Crim.App.2009). A trial court's erroneous
                                                                      ruling on issues relating to questioning a venire
                                                                      panel about its understanding of the burden of proof
A. Standard of Review                                                 is non-constitutional error subject to a harm analysis
[14] [15] [16] [17]“The trial court has broad discretion over         under Texas Rule of Appellate Procedure 44.2(b).
the process of selecting a jury.” Fuller v. State, 363 S.W.3d         See Tex.R.App. P. 44.2; Fuller, 363 S.W.3d at
583, 585 (Tex.Crim.App.2012) (quoting Sells v. State, 121             587–89; Rich v. State, 160 S.W.3d 575, 577
S.W.3d 748, 755–56 (Tex.Crim.App.2003)). We will not                  (Tex.Crim.App.2005). We review non-constitutional
disturb the trial court's ruling on the propriety of a particular     error to determine whether it affected an appellant's
voir dire question absent an abuse of discretion. Id. A trial         substantial rights. Tex.R.App. P. 44.2(b); Johnson v.
court abuses its discretion when it prohibits a proper question       State, 43 S.W.3d 1, 4 (Tex.Crim.App.2001). An
about a proper area of inquiry. Id. A question is proper if it        error affects a substantial right “when the error has
seeks to discover a juror's views on an issue applicable to the       a substantial and injurious effect or influence” on the
case. Id. However, voir dire questions that misstate the law are      verdict. Id.
improper. Thompson, 95 S.W.3d at 541.

                                                                      B. Analysis
[18]Generally, a prosecutor's statements during voir dire will        *13 [21]Preliminarily, we note that appellant's
not constitute error unless they are contrary to the trial court's    complaint is not one of charge error—the jury
charge. See Wilder v. State, 111 S.W.3d 249, 253                      charge did not define the term “wrong,” nor does
(Tex.App.–Texarkana 2003, pet. ref'd). The Court of Criminal          appellant argue that the charge should have included
Appeals has held that voir dire questions regarding a                 a definition of that term. See Kirsch v. State, 357
particular, statutorily undefined term are proper when the            S.W.3d 645, 651–52 (Tex.Crim.App.2012) (holding
question seeks to discover the venire members' views on an            that fact that appellate court defined
issue applicable to the trial, is not repetitious, and is not in an   statutorily-undefined term when reviewing
improper form. Fuller, 363 S.W.3d at 586 (quoting Woolridge           sufficiency of the evidence in one case does not
v. State, 827 S.W.2d 900, 906 (Tex. Crim.App.1992)). The              necessarily mean definition must or even should be
court stated,                                                         provided to jury in future cases); Ramos v. State,
                                                                      303 S.W.3d 302, 308 (Tex.Crim.App.2009) (holding
      [T]he fact that no definition will be provided                  that, as general rule, terms need not be defined in
      [in the jury charge] for a term does not render                 jury charge if they are not statutorily defined). Thus,
      a prospective juror's understanding of that                     appellant's reliance on the reasoning in Kirsch,
      term irrelevant. To the contrary, that                          which analyzed the harm of providing an instruction
      understanding becomes more crucial to the                       to the jury in the jury charge itself, is misplaced in
      intelligent exercise of either the State's or the               this case. See 357 S.W.3d at 651–52.
      defendant's peremptory challenges because
      there is no definition to guide what could be a
      juror's skewed perception of the term.                          The question in this case is whether the trial court
                                                                      erred, as a matter of law, by allowing the State to
Id. (stating, in context of analyzing allegedly                       give an improper definition of the word “wrong” to
improper definition of “beyond a reasonable doubt,”                   the jury that was not later incorporated in an

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McAfee v. State, --- S.W.3d ---- (2015)




instruction in the charge. The Penal Code does not          that the error had a substantial or injurious effect or
define “wrong.” However, the Court of Criminal              influence on the verdict against appellant or that
Appeals has held that “wrong” in the context of the         appellant's substantial rights were affected, as
affirmative defense of insanity means “illegal” by          required to demonstrate reversible error. See
societal standards.Ruffin, 270 S.W.3d at 592; see           Tex.R.App. P. 44.2(b); Johnson, 43 S.W.3d at 4.
also Bigby, 892 S.W.2d at 878 (holding that focus of
insanity inquiry should not be on appellant's
morality, but should instead be on “whether [he]            *14 We overrule appellant's second issue.
understood the nature and quality of his action and
whether it was an act he ought to do.... By accepting
and acknowledging his action was ‘illegal’ by
societal standards, [Bigby] understood that others                    Admission of Storer's Testimony
believed his conduct was ‘wrong’ ”) (internal
citations omitted).                                         In his third issue, appellant argues that the trial court
                                                            erred in denying his motion to suppress the
                                                            testimony of Charles Storer, his attorney and friend
The prosecutor's definition of “wrong” as “legally,         whom he called in the course of committing the
socially, or morally impermissible” expressed a             offense.
commonly accepted meaning of the word that was
somewhat broader than the strict legal definition of
wrong as “illegal” by societal standards. Compare           A. Standard of Review
Ruffin, 270 S.W.3d at 592 (holding that “wrong,” in         [22] [23]“In reviewing a trial court's ruling on a
context of insanity defense, means “illegal” by             motion to suppress, appellate courts must view the
societal standards) and Bigby, 892 S.W.2d at 878            evidence in the light most favorable to the trial
(holding that focus of insanity inquiry should be on        court's ruling.” Johnson v. State, 414 S.W.3d 184,
“whether [appellant] understood the nature and              192 (Tex.Crim.App.2013); see also Shepherd v.
quality of his action and whether it was an act he          State, 273 S.W.3d 681, 684 (Tex.Crim.App.2008)
ought to do.... By accepting and acknowledging his          (holding that we review denial of motion to suppress
action was ‘illegal’ by societal standards, [Bigby]         evidence for abuse of discretion). When, as here, a
understood that others believed his conduct was             trial court makes explicit fact findings, we must
‘wrong’ ”), with Merriam–Webster's Collegiate               determine whether the evidence viewed in the light
Dictionary 1447 (11th ed.2003) (defining “wrong”            most favorable to the trial court's ruling supports the
as “not according to the moral standard” or “not            fact findings. See Johnson, 414 S.W.3d at 192; see
right or proper according to a code, standard, or           also State v. Cullen, 195 S.W.3d 696, 699
convention”). Appellant does not identify any other         (Tex.Crim.App.2006) (holding that trial court's
point in the proceedings where the State's definition       findings of fact and conclusions of law are sufficient
of the word “wrong” was used, and it is undisputed          if they are “recorded in some way, whether written
that the jury charge did not include any definition of      out and filed by the trial court, or stated on the
the word “wrong.” We thus presume that the jury             record at the hearing”).
“attach[ed] a common understanding to the meaning
of term[ ].” See Smith, 297 S.W.3d at 275 (holding
that jurors are presumed to attach common                   [24] [25] [26] [27]We review motions to suppress
understanding of meaning of terms that are not              pursuant to a bifurcated standard under which the
defined in jury charge). Moreover, that meaning was         trial court's determinations of historical facts and
closely similar to the definition in case law and, if       mixed questions of law and fact that rely on
anything, was more favorable to appellant than the          credibility are granted almost total deference when
strict legal definition.                                    supported by the record. Johnson, 414 S.W.3d at
                                                            192. However, for questions of law or mixed
                                                            questions of law and fact that do not depend on the
Assuming without deciding that the trial court erred        evaluation of credibility and demeanor, we review
by permitting the prosecution to define the word            the trial court's ruling de novo. Id. At a suppression
“wrong” during voir dire by using a commonly                hearing, the trial court “is the sole trier of fact and
accepted definition that was broader than the               judge of the credibility of the witnesses and the
definition set out in case law, we cannot conclude          weight to be given their testimony.” Wiede v. State,

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214 S.W.3d 17, 24–25 (Tex.Crim.App.2007). The                 by the client or the attorney on behalf of the client.
trial court may choose to believe or disbelieve any           Tex.R. Evid. 503(c); 61 Tex. B.J. at 382; Cameron,
part or all of a witness's testimony. State v. Ross, 32       241 S.W.3d at 19; see also Carmona v. State, 941
S.W.3d 853, 855 (Tex.Crim.App.2000). We sustain               S.W.2d 949, 953 (Tex.Crim.App.1997) (holding that
the trial court's ruling if it is reasonably supported by     attorney-client privilege is designed for client's
the record and correct on any theory of law                   benefit by guaranteeing confidentiality to promote
applicable to the case. Laney v. State, 117 S.W.3d            forthright communications between lawyer and
854, 857 (Tex.Crim.App.2003).                                 client). The client can waive the privilege by
                                                              voluntarily disclosing or consenting to the disclosure
                                                              of a significant part of the privileged matter.Tex.R.
[28]Confidential communications between client and            Evid. 511(1), 61 Tex. B.J. at 387;4 Carmona v. State,
counsel made to facilitate legal services are                 947 S.W.2d 661, 663 (Tex.App.–Austin 1997, no
generally insulated from disclosure. See Tex.R.               pet.). Disclosure by the attorney does not waive the
Evid. 503(b)(1), 61 Tex. B.J. 374, 381 (Tex. &                privilege absent the client's consent. Carmona, 947
Tex.Crim.App.1998, amended 2015) (providing that              S.W.2d at 663 (citing Cruz v. State, 586 S.W.2d
client has privilege to refuse to disclose and to             861, 865 (Tex.Crim.App.1979)).
prevent any other person from disclosing
confidential communications between client and
lawyer made for purpose of facilitating rendition of          [31]A party asserting a privilege has the burden of
professional legal services to client);3 Cameron v.           showing that the privilege applies. Peto v. State, 51
State, 241 S.W.3d 15, 19 (Tex.Crim.App.2007).                 S.W.3d 326, 327 (Tex.App.–Houston [1st Dist.]
Thus, the scope of the attorney-client privilege as set       2001, pet. ref'd); Carmona, 947 S.W.2d at 663
out in the rules of evidence is limited to                    (“The privilege claimant must prove the existence of
communications “made by a client seeking legal                the privilege.”) (citing Austin v. State, 934 S.W.2d
advice from a lawyer in her capacity as such and the          672, 674 (Tex.Crim.App.1996), and Carmona, 941
communication must relate to the purpose for which            S.W.2d at 954 n. 6).
the advice is sought.” State v. DeAngelis, 116
S.W.3d 396, 404 (Tex.App.–El Paso 2003, no pet.).
“[T]he proof, express or circumstantial, must                 [32] [33] [34] [35]Once the privilege has been
indicate the client's desire for confidence and               established, the party seeking to establish waiver of
secrecy.” Id.                                                 the privilege has the burden of going forward with
                                                              evidence that supports a finding of waiver.
                                                              Carmona, 947 S.W.2d at 663 (citing Carmona, 941
*15 “A communication is ‘confidential’ if not                 S.W.2d at 953). Waiver may be inferred from the
intended to be disclosed to third persons other than          totality of the circumstances and reasonable
those to whom disclosure is made in furtherance of            inferences. Id. The disclosure of the privileged
the rendition of professional legal services to the           material by defense counsel is relevant in
client or those reasonably necessary for the                  determining waiver. Id. After the State has gone
transmission of the communication.” Tex.R. Evid.              forward with evidence supporting waiver of the
503(a)(5), 61 Tex. B.J. at 381; DeAngelis, 116                privilege, the party claiming the privilege “may find
S.W.3d at 404. Rule 503(b)(2) adds a special rule of          it wise to present evidence of no waiver.” Id.
privilege for criminal cases: “In criminal cases, a
client has a privilege to prevent the lawyer or
lawyer's representative from disclosing any other             [36] [37]We review the trial court's decision on the
fact which came to the knowledge of the lawyer or             applicability of a privilege for an abuse of discretion.
the lawyer's representative by reason of the                  Id. at 664. We can reverse a decision only if “the
attorney-client relationship.” Tex.R. Evid. 503(b)(2),        trial court applied an erroneous legal standard, or
61 Tex. B.J. at 381; Cameron, 241 S.W.3d at 19.               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
[29] [30]“In general, privileges are exclusionary             legal conclusion.” Id. (quoting DuBose v. State, 915
rules of evidence that may be used to suppress                S.W.2d 493, 498 (Tex.Crim.App.1996)).
relevant evidence.” Cameron, 241 S.W.3d at 19.
The rule specifies that the privilege may be claimed

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B. Analysis                                                  facilitate legal services. See Tex.R. Evid. 503(a)(5),
*16 [38]Here, appellant moved to suppress Storer's           61 Tex. B.J. at 381 (“A communication is
testimony regarding the content of appellant's phone         ‘confidential’ if not intended to be disclosed to third
calls to him on the night of the murder based on an          persons other than those to whom disclosure is made
assertion of attorney-client privilege. The trial court      in furtherance of the rendition of professional legal
held a hearing and determined that the                       services to the client or those reasonably necessary
attorney-client privilege did not apply to the phone         for the transmission of the communication.”);
calls appellant made in the course of committing the         Cameron, 241 S.W.3d at 19. Nor did these phone
offense.                                                     calls constitute the disclosure of “any other fact
                                                             which came to the knowledge of the lawyer or the
                                                             lawyer's representative by reason of the
The record contains conflicting evidence regarding           attorney-client relationship.” See Tex.R. Evid.
the nature of appellant's relationship with Storer at        503(b)(2), 61 Tex. B.J. at 381; Cameron, 241
the time the phone calls occurred. Storer testified          S.W.3d at 19. Rather, the evidence supports the trial
that he communicated that night with appellant as his        court's conclusion that appellant's communications
attorney and provided him with legal advice. The             were made to Storer in his capacity as appellant's
record also contained evidence that appellant told           close friend, and not as an attorney providing legal
police that he wanted to see his attorney and that           representation.
when Storer arrived on the scene, he introduced
himself as appellant's attorney.
                                                             Although the record contains some conflicting
                                                             evidence, the trial court is the sole trier of fact and
However, it was undisputed that appellant and Storer         judge of the credibility of the witnesses and the
were long-time friends, and Storer testified that he         weight to be given their testimony at a suppression
was probably appellant's closest friend. Appellant           hearing, and we are to grant almost total defense to
did not call Storer's legal office; rather, he called        the trial court's determinations of historical fact and
Storer's cell phone. Storer also acknowledged that he        mixed questions of law and fact that rely on
did not typically practice criminal defense law.             credibility when they are supported by the record.
During the suppression hearing, he testified that the        See Johnson, 414 S.W.3d at 192; Wiede, 214
advice he gave appellant consisted of informing him          S.W.3d 17, 24–25. We cannot conclude that the trial
that the murder was not a capital offense for which          court “applied an erroneous legal standard” or that
he could receive the death penalty, and Storer               “no reasonable view of the record could support the
admitted that this was the type of advice he would           trial court's conclusion” that appellant failed to meet
give to anyone, whether they were a client or a              his burden of establishing that the attorney-client
friend. The remaining content of the phone                   privilege applied to his communications. See
conversations—e.g., appellant's assertion that he            Carmona, 947 S.W.2d at 664.
wanted to commit suicide and his wishes for his
burial, and Storer's attempt to talk appellant out of
killing himself—are more typically conversations             *17 Given this record, we cannot conclude that the
one would have with a friend, not one's attorney.            trial court abused its discretion in finding that the
Storer acknowledged, both to police officers on the          attorney-client privilege did not apply to these
day following the murder and at trial, that he had           communications. See Johnson, 414 S.W.3d at 192
never represented appellant in a criminal matter.            (evidence must be viewed in light most favorable to
And Storer acknowledged that when he called 9–1–1            trial court's ruling); Carmona, 941 S.W.2d at 953
and later made his statement to police, it did not           (attorney-client privilege is designed to guarantee
occur to him to assert the attorney-client privilege on      confidentiality to promote forthright communication
appellant's behalf.                                          between lawyers and client); see also DeAngelis,
                                                             116 S.W.3d at 404 (attorney-client privilege applies
                                                             to communications “made by a client seeking legal
Viewing the evidence in the light most favorable to          advice from a lawyer in her capacity as such and the
the trial court's ruling, as we must, we conclude there      communication must relate to the purpose for which
is evidence to support the trial court's ruling that         the advice is sought” and “the proof ... must indicate
these communications were not confidential                   the client's desire for confidence and secrecy.”).
communications between client and counsel made to

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                                                            We have viewed the Texas [separation-of-powers]
We overrule appellant's third issue.                        provision as generally susceptible to violation in one
                                                            of two ways:

                                                              (1) when one branch of government assumes or is
          Constitutionality of Court Costs                    delegated a power “more properly attached” to
                                                              another branch, or
Following his conviction, the trial court assessed the
mandatory $133 in consolidated court costs. In his
fourth issue, appellant complains that a portion of           (2) when one branch unduly interferes with
the court costs, the “crime stoppers fee,” does not           another branch so that the other branch cannot
fund any cost for the court's function and thus is            effectively exercise its constitutionally assigned
facially unconstitutional. Appellant argues that this         powers.
fee should more properly be characterized as a tax
and that requiring courts to collect costs for such a
tax or program that is not refunded back to the courts      Id. (quoting Ex parte Gill, 413 S.W.3d 425, 431–32
is a violation of the separation of powers clause           (Tex.Crim.App.2013)). Appellant argues that the
because it imposes an executive function on the             statutory scheme for collection of the crime stoppers
judicial branch.                                            fee improperly delegates a power to the judicial
                                                            branch that is more appropriately attached to the
                                                            executive branch. See id.
A. Standard of Review
[39] [40] [41]In addressing a constitutional
challenge, this court “must begin with the                  Regarding the allocation of court costs addressed by
presumption that the statute is valid and that the          appellant, Texas Local Government Code section
Legislature did not act arbitrarily or unreasonably in      133.102(a)(1) provides that a person convicted of a
enacting it.” State v. Rosseau, 396 S.W.3d 550, 557         felony offense “shall pay as a court cost, in addition
(Tex.Crim.App.2013); Salinas v. State, 426 S.W.3d           to all other costs,” $133. Tex. Local Gov't Code
318, 326 (Tex.App.–Houston [14th Dist.] 2014, pet.          Ann. § 133.102(a)(1) (Vernon Supp.2014). The
granted). The party challenging the statute “has the        Local Government Code further provides that these
burden to establish its unconstitutionality.” Rosseau,      court costs “shall be collected and remitted to the
396 S.W.3d at 557; Salinas, 426 S.W.3d at 326.              comptroller” and that the comptroller shall allocate
“[T]o prevail on a facial challenge, a party must           a statutorily determined percentage of the court costs
establish that the statute always operates                  according to a list of specific accounts and funds. Id.
unconstitutionally in all possible circumstances.”          § 133.102(b), (e); see also Tex. Const. art. IV, § 1
Rosseau, 396 S.W.3d at 557; Salinas, 426 S.W.3d at          (providing that Comptroller of Public Accounts is
326.                                                        one of six officers of state's executive department).
                                                            Among those funds is “crime stoppers assistance,”
                                                            which is to receive 0.2581 percent of the
[42]The Texas Constitution contains an express              consolidated court costs, or, in this case,
separation-of-powers provision. Tex. Const, art. II,        approximately $0.34. See Tex. Local Gov't Code
§ 1; Ex parte Lo, 424 S.W.3d 10, 28                         Ann. § 133.102(e)(2).
(Tex.Crim.App.2013) (op. on reh'g). “This division
ensures that power granted one branch may be
exercised by only that branch, to the exclusion of          *18 Texas Code of Criminal Procedure chapter 102
others,” and “therefore requires that ‘any attempt by       provides specifically for the allocation of the crime
one department of government to interfere with the          stoppers assistance account. Tex.Code Crim. Proc.
powers of another is null and void.’ ” Ex parte Lo,         Ann. art. 102.013 (Vernon 2006). Specifically,
424 S.W.3d at 28 (quoting Meshell v. State, 739             article 102.013 provides:
S.W.2d 246, 252 (Tex.Crim.App.1987)). The Court
of Criminal Appeals has recently held:                            The legislature shall appropriate funds from
                                                                  the crime stoppers assistance account to the
                                                                  Criminal Justice Division of the Governor's
                                                                  Office. The Criminal Justice Division may use

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McAfee v. State, --- S.W.3d ---- (2015)




      10 percent of the funds for the operation of the      also O'Bannon v. State, 435 S.W.3d 378, 381–82
      toll-free telephone service under Section             (Tex.App.–Houston [14th Dist.] 2014, no pet.)
      414.012, Government Code, and shall                   (analyzing similar complaint).
      distribute the remainder of the funds only to
      crime stoppers organizations. The Criminal
      Justice Division may adopt a budget and rules         In both Salinas and O'Bannon, the Fourteenth Court
      to implement the distribution of these funds.         of Appeals held that the appellant failed to satisfy his
                                                            burden to show that the statute was facially invalid
Id. art. 102.013(a).                                        because he had not shown that the funds would not
                                                            be used for criminal justice activities once they were
                                                            distributed. See O'Bannon, 435 S.W.3d at 382;
                                                            Salinas, 426 S.W.3d at 327. Here, appellant argues
The Texas Government Code contains provisions               that he need not provide evidence regarding how the
defining and regulating crime stoppers organizations.       “crime stoppers assistance” fee is distributed
It defines “crime stoppers organizations” to include        because the Code of Criminal Procedure provides
either private or public organizations that pay             that those funds are to be distributed to “the Criminal
“rewards to persons who report to the organization          Justice Division of the Governor's Office,” which
information about criminal activity and that forward[       “may use 10 percent of the funds for the operation of
] the information to the appropriate law enforcement        the toll-free [crime stoppers] telephone service” and
agency.” Tex. Gov't Code Ann. § 414.001(2)                  “shall distribute the remainder of the funds only to
(Vernon 2012). The Government Code also provides            crime stoppers organizations.” See Tex.Code Crim.
for a “Texas Crime Stoppers Council,” organized             Proc. Ann. art. 102.013(a). He contends that these
under the criminal justice division of the governor's       are not judicial branch activities, but executive
office, to “encourage, advise, and assist in the            branch activities that are administered by the
creation of crime stoppers organizations” and to            executive branch of the State government.
“encourage, advise, and assist crime stoppers
organizations in implementing” programs, among
other duties. Id. §§ 414.002(a), 414.005 (Vernon            *19 A review of the statutes related to crime
2012 & Supp.2014).                                          stoppers organizations, however, reveals that funds
                                                            collected for the “crime stoppers assistance” fund are
                                                            sufficiently related to the collection of evidence in
B. Analysis                                                 criminal cases to constitute legitimate criminal
[43]Here, appellant complains that the “crime               justice activities. See O'Bannon, 435 S.W.3d at 382
stoppers fee,” included in the consolidated court           (addressing similar argument regarding collection of
costs assessed against him, is not actually a cost of       DNA testing fee). “Crime stoppers organizations”
court, but is instead a tax. He argues that delegating      include either private or public organizations that
the collection of this tax to the judicial branch           pay “rewards to persons who report to the
violates the separation of powers clause of the Texas       organization information about criminal activity and
Constitution by delegating a power to the judicial          that forward[ ] the information to the appropriate law
branch that is more appropriately attached to the           enforcement agency.”Tex. Gov't Code Ann. §
executive branch. Thus, he argues, the court costs          414.001(2). The “Texas Crime Stoppers Council”
are facially unconstitutional.                              has numerous duties, including the duties to
                                                            “encourage, advise, and assist in the creation of
                                                            crime stoppers organizations,” to “foster the
Our sister court of appeals recently addressed a            detection of crime and encourage persons to report
similar argument when an appellant argued that              information about criminal acts,” to “promote the
Local Government Code section 133.102 was                   process of crime stoppers organizations to forward
facially unconstitutional because “the uses specified       information about criminal acts to the appropriate
in section 133.102(e) for the court costs collected         law enforcement agencies,” to “help law
under section 133.102(a)(1) include uses that are not       enforcement agencies detect and combat crime by
properly characterized as ‘costs of court’ ” and,           increasing the flow of information to and between
therefore, that section “impermissibly requires the         law enforcement agencies,” and to “encourage,
judicial branch to perform an executive function by         advise, and assist crime stoppers organizations in
collecting a tax.” Salinas, 426 S.W.3d at 325; see

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implementing” specialized programs targeting sex
offenders, among other duties. Id. § 414.005.


Thus, this statutory scheme allocates resources to be
expended for legitimate criminal justice purposes.
See O'Bannon, 435 S.W.3d at 382 (holding that
“interconnected provisions” permitted DNA Testing
Fee to be redistributed through state highway fund to
Department of Public Safety “for legitimate criminal
justice purposes”); cf. Ex parte Lo, 424 S.W.3d at 28
(holding that separation-of-powers provision may be
violated “when one branch of government assumes
or is delegated a power ‘more properly attached’ to
another branch” or “when one branch unduly
interferes with another branch so that the other
branch cannot effectively exercise its constitutionally
assigned powers.”). Accordingly, appellant has
failed to satisfy his burden to show that the statute is
facially invalid. See Rosseau, 396 S.W.3d at 557.


We overrule appellant's fourth issue.



                      Conclusion

We affirm the judgment of the trial court.



All Citations

--- S.W.3d ----, 2015 WL 2235122



Footnotes

1        See Tex. Penal Code Ann. § 19.02 (Vernon 2011).


2        The jury charge did not define “wrong.” The jury charge contained, in relevant part, an instruction that the jury could find appellant
         not guilty by reason of insanity if it found by a preponderance of the evidence that, “as a result of severe mental disease or defect,
         [he] did not know that his conduct was wrong.”

3        Effective April 1, 2015, the Texas Supreme Court adopted amendments to the rules of evidence. 78 Tex. B.J. 42, 42 (Tex.2015). The
         revisions to Rule of Evidence 503 were stylistic and do not affect the substance of the rule. We cite the old rule, as that version as
         in effect at the time this case was tried.




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McAfee v. State, --- S.W.3d ---- (2015)




4      Effective April 1, 2015, Rule 511 was revised to conform with Federal Rule of Evidence 502. 78 Tex. B.J. at 42. Rule of Evidence
       511(a)(1) now provides: “A person upon whom these rules confer a privilege against disclosure waives the privilege if ... the person
       or a predecessor of the person while holder of the privilege voluntarily discloses or consents to disclosure of any significant part of
       the privileged matter unless such disclosure is itself privileged [.]” Tex.R. Evid. 511(a)(1). Again, we cite the prior version of the
       rule, which was in effect at the time this case was tried.

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