Henderson v. State

• Decision Date: 03 December 1997
• Docket Number: No. 72,157,72,157
• Citation: Henderson v. State, 962 S.W.2d 544 (Tex. Crim. App. 1997)
• Parties: Cathy Lynn HENDERSON, Appellant, v. STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 544

962 S.W.2d 544

Cathy Lynn HENDERSON, Appellant, v. STATE of Texas, Appellee.

No. 72,157.

Court of Criminal Appeals of Texas En Banc.

Dec. 3, 1997.

Rehearing Denied March 4, 1998.

Keith S. Hampton, Austin, for appellant.

Philip A. Nelson, Jr., Assistant District Attorney, Matthew Paul, State's Atty., Austin, for the State.

Before the court en banc.

OPINION

KELLER, Judge delivered the opinion of the Court with respect to Parts 1, 2b, 3, and 4, in which McCORMICK, Presiding Judge, and MEYERS, MANSFIELD, PRICE, HOLLAND, and WOMACK, Judges joined, and an opinion with respect to Part 2a, in which MEYERS, PRICE and HOLLAND, Judges, joined, and in which MANSFIELD and WOMACK, Judges, joined only as to point of error nine.

In a trial beginning in May of 1995, appellant was convicted of the capital murder of three-and-a-half-month-old Brandon Baugh committed on January 21, 1994 in Travis County. ¹ The jury answered the punishment issues in the State's favor, and appellant was sentenced to death. Direct appeal to this Court is automatic under Article 37.071(h). ² Appellant raises seventeen points of error on appeal. We will affirm.

1. The maps

a. Facts

In points of error one through eight, and seventeen, appellant makes various complaints relating to the trial court's order compelling her attorneys to turn over maps of the victim's location. On the morning of January 21, 1994, Eryn and Melissa Baugh left their infant son, Brandon, with their babysitter, appellant. That day, both appellant and Brandon disappeared. A kidnapping investigation began the next day. Appellant was profiled on the television show "America's Most Wanted," and Texas law enforcement authorities and the FBI received tips indicating that appellant had been seen with the baby in Missouri and Idaho. In addition, law enforcement obtained information from appellant's daughter that the trunk of appellant's car had been slightly ajar during a trip on the 21st to Holland, Texas and that appellant had carried a diaper bag in her car.

On February 1, appellant was arrested by the FBI in Kansas City, Missouri. FBI agent Michael Napier interrogated appellant, while FBI agent Timothy Hepperman observed from behind a one-way mirror. Appellant first denied any knowledge of Brandon's location or well-being. Later, she stated that the baby's grandmother, driving a car with Oklahoma license plates, picked up Brandon during the afternoon of January 21. Appellant later admitted to killing Brandon but claimed that his death was an accident. She told Agent Napier that she had buried the baby in a wooded area near Waco, that she had used a spade to dig the grave and had left the spade lying nearby, and that she could take an officer to the scene. Napier memorialized appellant's final story in writing, but she refused to sign the written statement. Agent Napier then turned to the subject of drawing a map, and asked appellant a number of times if she would draw a map of the baby's location. She repeatedly declined to do so and subsequently requested an attorney. The interrogation was then terminated. At the conclusion of the interview, Agents Napier and Hepperman both formed the subjective belief that the baby was dead. On February 2, 1994, Agent Hepperman communicated to Travis County deputies Stan Hibbs and Rick Wines that he believed the baby was dead and also that appellant had declined requests to draw a map.

That same day, Ronald Hall, assistant federal public defender in Kansas City, and Ronald Ninemire, chief investigator for the public defender's office, met with appellant. During the course of conversations with appellant, Hall determined that he needed a map. He contacted Agent Hepperman and inquired about obtaining a Texas map. Not knowing who Hall was, Hepperman was uncooperative. In response, Hall told Hepperman that he was trying to locate the baby. Frustrated in his attempts to obtain a map in the federal courthouse, Hall walked across the street to his office and obtained a Texas map from Ninemire's desk. Later, Hepperman arranged delivery of a Texas map to Hall and apologized for the earlier encounter.

After interviewing appellant, Hall talked to a group of law enforcement agents, including Carla Oppenheimer (the assistant U.S. Attorney handling the case), Agent Hepperman, and Deputies Hibbs and Wines. Hall told this group that he believed the baby was dead and buried in a wooded area outside Waco. Several of the law enforcement agents testified that Hall also stated that appellant had drawn a detailed map to the location of the baby and that he (Hall) had never been to Texas but could find the baby with the map. Hall denied making these statements regarding the map and denied that he ever volunteered that appellant had made a map. Instead, Hall testified that he was asked about a map and that he simply stated that all materials were being forwarded to appellant's attorneys in Texas. The testimony is uncontroverted, however, that Hibbs asked both Hall and Ninemire for copies of the map, and both declined such requests. ³ Hepperman and Oppenheimer nevertheless formed subjective beliefs that the map was made with an intent to be turned over to law enforcement. Hepperman based his belief on statements made by Hall to him in attempting to obtain a Texas map while Oppenheimer based her belief on statements made by appellant during the FBI interrogation.

That day, law enforcement authorities asked Nona Byington, appellant's Texas lawyer, for the map, and she attempted to negotiate a plea bargain in which she would exchange the maps in her possession for an agreed sentence. On February 3, a Travis County grand jury issued a subpoena duces tecum for Byington to appear and produce any maps in her possession that were created by appellant. Byington did not appear before the grand jury. Travis County Sheriff Terry Keel subsequently obtained an arrest warrant for Byington and a search warrant for her car and office. On February 4, the arrest warrant was withdrawn but the search warrant for Byington's office and car was executed. No maps were found in the search. During this period of time, Byington was herself represented by attorneys who claimed that the maps were covered by the attorney-client privilege. In addition, appellant herself signed an affidavit stating that all communications or materials conveyed by her to her attorneys during the course of representation were privileged and not to be disclosed.

Meanwhile, on February 2, appellant had been transferred from Missouri to Texas custody. While confined in Texas, appellant made various statements concerning Brandon's whereabouts. At one point, she denied any knowledge of the child's location and stated that he had gone with his grandmother. At another point, appellant stated that she could draw a map to a drop-off point in Missouri where the baby had been taken to Oklahoma.

On February 7, the grand jury issued another subpoena and the State filed a motion to compel production, in compliance with that subpoena, of any maps drawn by appellant in Byington's possession. A hearing was held before Judge Jon Wisser in which the State contended that (1) the maps were not confidential communications covered by the attorney-client privilege, and (2) the maps fell within the crime-fraud exception to the privilege. Judge Wisser granted the motion to compel. He found that, although an attorney-client relationship between Byington and appellant existed, the maps were not privileged because they were made with the intent to be turned over to law enforcement authorities. Judge Wisser explained that, in arriving at this conclusion, he consulted "one of my much more learned brethren of the law school," whom the parties later learned was Professor Guy Wellborn, an expert on the rules of evidence.

As a result of Judge Wisser's ruling, copies of two maps were turned over pursuant to the grand jury subpoena. According to Hibbs, the maps in fact indicated a grave site. Using the maps, law enforcement authorities found the baby's grave site and recovered his body.

Appellant subsequently filed a motion to recuse Judge Wisser from presiding over the remainder of the proceedings in the case. This recusal motion alleged that Judge Wisser's previous consultation with Professor Wellborn violated the Code of Judicial Conduct and that Judge Wisser's further participation in the trial would compromise his ability to be impartial because he would be required to rule upon the propriety of that consultation. A different judge was assigned to hear the motion, testimony was heard, and the motion to recuse was overruled.

Appellant subsequently filed a motion to suppress "material revealed and recovered as a result of" the compelled release of the maps. After a hearing, Judge Wisser made numerous findings of fact and conclusions of law. A summary of his relevant conclusions are as follows: ⁴ (1) appellant was precluded from litigating the privilege issue at the motion to suppress because she failed to meet her burden at the motion to compel hearing when she had an opportunity to litigate the issue, (2) even considering the evidence at the motion to suppress hearing, the maps were not privileged because they were intended to aid law enforcement officers in locating the missing child and were not intended to be confidential, (3) the public defender did not violate the attorney-client privilege during the course of his discussions with law enforcement authorities, (4) the crime-fraud exception to the attorney-client privilege applied because there was evidence and information of an ongoing kidnapping at the time of the hearing on the motion to compel, (5) even if law enforcement authorities were bound by appellant's statements that the child was dead, the crime-fraud exception to the attorney-client privilege applied because appellant would be committing the ongoing crime of abuse of a corpse, (6) even if the maps were...