Cameron v. State

• Decision Date: 12 September 2007
• Docket Number: No. PD-0413-06.,PD-0413-06.
• Citation: 241 S.W.3d 15
• Parties: Michael Leroy CAMERON, Appellant v. The STATE of Texas.
• Court: Texas Court of Criminal Appeals

241 S.W.3d 15

Michael Leroy CAMERON, Appellant v. The STATE of Texas.

No. PD-0413-06.

Court of Criminal Appeals of Texas.

September 12, 2007.

Rehearing Denied December 12, 2007.

Mike DeGeurin, Houston, for appellant.

OPINION

MEYERS, J., delivered the opinion of the Court, in which PRICE, WOMACK, JOHNSON, KEASLER, HERVEY, HOLCOMB, and COCHRAN, JJ., joined.

A jury convicted Appellant of delivery of a controlled substance and assessed a sentence of 25 years' imprisonment. Appellant appealed the trial court's failure to admit the testimony of his former attorney. The court of appeals affirmed the judgment of the trial court. Cameron v. State, No. 07-03-0362-CR, 2006 WL 299066 (Tex.App.-Amarillo February 8, 2006) (not designated for publication), 2006 Tex.App. LEXIS 1018. We granted review and remanded to the court of appeals for reconsideration. On remand, the court of appeals considered the issue of whether Appellant, as the party offering the evidence, was required to tell the trial court not only that his opponent's objection was not correct, but also why it was not correct. The court determined that the issue was not preserved for review because it was not enough for Appellant to tell the court that his evidence was admissible, he was also required to tell why it was admissible. Id. at *2, 2006 Tex.App. LEXIS 1018 at *9-10. Appellant filed a petition for discretionary review asking us to consider whether the court of appeals misapplied Reyna v. State, 168 S.W.3d 173 (Tex. Crim.App.2005) and erred in holding that Appellant did not adequately explain why the evidence was admissible. We hold that the court of appeals erred in holding that the issue was not preserved for review.

FACTS

Appellant's co-defendant approached an undercover officer in a nightclub and asked him if he would like to smoke some marihuana. The officer declined, but asked if she knew where he could buy some cocaine. She said that she could get him some and used the officer's cell phone to call Appellant. Shortly thereafter, Appellant entered the nightclub, made eye contact with his co-defendant, and walked back outside. The co-defendant told the officer that her friend had arrived with the drugs. The officer informed another undercover officer who was with him at the club that he was about to make a drug deal, and the officers went outside with the co-defendant to meet Appellant. Once outside, the co-defendant walked over to Appellant, who was standing next to a truck. She took something from him, which the officers assumed was cocaine, and brought it to them. They took the drugs from her and gave her the money, which she then took to Appellant. The officers later ran the license plate number on the truck by which Appellant was standing. When they obtained the driver's license photo of the truck's owner, they recognized him as the man who had delivered the drugs. Appellant was arrested for delivery of a controlled substance.

At trial, Appellant wanted to call his former attorney to testify regarding notes the attorney had taken when he reviewed the police report in the State's file. The State asked to approach the bench and, out of the hearing of the jury, asked why the former attorney was being called. Appellant responded that the purpose of the testimony was to show that the former attorney had seen two different police reports in the file that had conflicting information regarding the color of Appellant's truck. The trial court asked if the testimony would be based on the former attorney's personal memory or his notes. Appellant responded that it would be based on the former attorney's notes, which he had with him. The trial court asked if Appellant was willing to waive his attorney-client privilege. The defense responded that he did not believe that it required any kind of waiver and that Appellant would not waive his attorney-client privilege. The trial court would not allow the witness to testify. During an offer of proof, Appellant's attorney testified that the first time he reviewed the State's file, it contained a handwritten police report stating that the truck by which Appellant was standing was white. The second time he reviewed the file, the handwritten report had been replaced by a typewritten report which stated that the truck was dark blue.

The jury found Appellant guilty and assessed a sentence of twenty-five years.

PROCEDURAL HISTORY

Appellant appealed the trial court's decision that his former attorney could not testify without a complete waiver of the attorney-client privilege. In a memorandum opinion, the court of appeals held that Appellant failed to effectively inform the trial court of his objection, and thus, he did not preserve the error for review. Appellant filed a petition for discretionary review. We granted the petition and issued an opinion stating that Appellant was offering evidence, not objecting to evidence. We suggested that our recent decision in Reyna may be relevant and sent the case back to the court of appeals for reconsideration of the issue. On remand, the court of appeals stated that the proffered testimony did not implicate a confidential communication between Appellant and his former attorney, but rather was the work product of the former attorney, which is covered by Rule of Evidence 503(b)(2).¹ After reviewing the record, the court of appeals said, "Significantly, appellant did not contend the evidence was admissible under the special provision covering attorney work-product privilege or inform the court that the attorney-client privilege was not applicable." Based on our holding in Reyna, the court held that the error was not preserved for review.

Appellant again filed a petition for discretionary review, and we granted the following three grounds for review:

Did the court of appeals misapply this Court's holding in Reyna v. State, 168 S.W.3d [173] (Tex.Crim.App.2005), where the appellant clearly explained to the trial court the reasons that the proposed testimony should be admitted?

Where a trial court, in excluding evidence from a trial, gives a specific legal reason for its exclusion, and the proponent of the evidence explains why he believes that such reason is not valid, is the proponent of the evidence then required to also explain why other, unmentioned legal objections which might also have been made to the introduction of such evidence are also not valid?

Where the trial court, in excluding evidence from a trial, explains as its reason for exclusion that the attorney-client privilege specifically applies, and that the evidence may not be admitted without a waiver of such privilege, has defense counsel adequately explained his legal reasoning for admission of such evidence if he responds that he does not believe that a waiver is necessary?

ARGUMENTS OF THE PARTIES

The State argues that the court of appeals correctly relied on Carmona v. State, 941 S.W.2d 949 (Tex.Crim.App. 1997), and determined that Appellant failed to preserve the issue for review because the objection based on the attorney-client privilege was not sufficient to preserve a claim based on the work-product doctrine. According to the State, Appellant's statement "I don't believe that it requires any type of waiver" related only to the attorney-client privilege and did not explain that no waiver was required under the work-product privilege of Rule 503(b)(2). Because the trial court incorrectly thought the offer of former counsel's work product was covered by the attorney-client privilege, it was necessary for Appellant to explain why no privilege applied. The State argues that Appellant should have contended that the evidence was admissible under the special provision covering attorney work-product, especially in light of this Court's non-literal interpretation of Rule 503(b)(2) in several prior cases. See Strong v. State, 773 S.W.2d 543, 551 (Tex.Crim.App.1989) and Henderson v. State, 962 S.W.2d 544, 552 (Tex.Crim.App.1997). The State points out that, under Martinez v. State, 91 S.W.3d 331, 336 (Tex.Crim.App.2002), appellate courts may not reverse a trial court's ruling on a theory or basis that was not raised, and Appellant did not raise the theory that the testimony was not privileged under Rule 503(b)(2). Finally, the State stresses that Appellant did not do what Reyna requires, which is to have done "everything necessary to bring to the judge's attention the evidence rule in question and its precise and proper application to the evidence in question." Reyna, 168 S.W.3d at 177.

Appellant counters that he should not have to urge attorney-work-product privilege as a ground in support of admitting his former attorney's testimony because the privilege protects testimony from being disclosed, rather than being a reason for admitting it. Appellant cites Washington v. State, 856 S.W.2d 184, 187 (Tex. Crim.App.1993), which states that the privilege is meant to shelter "the mental processes of the attorney, providing a privileged area within which [an attorney] can analyze and prepare his client's case." Therefore, the former attorney is the one who would have been able to raise an objection to testifying about his work product. However, he clearly waived this privilege by appearing in court to willingly testify. And, as Appellant stated in court, no other waiver was necessary.

Appellant says that the court of appeals misread Reyna as requiring the proponent of evidence to not only urge grounds for the admission of evidence, but also to raise and refute any possible objection to the evidence. The proponent of the evidence should not have to respond to objections that were raised and to objections that could have been raised but were not. By interpreting Reyna this way, the court of appeals held that trial counsel failed by not raising and refuting a possible objection to his own proposed evidence. Further, Appellant states that he did refute the possible objection by saying that he did not believe that...