In re Cook

• Decision Date: 25 February 2020
• Docket Number: NO. 14-19-00664-CR,14-19-00664-CR
• Citation: 597 S.W.3d 589
• Parties: IN RE Teresa L. Ribelin COOK, Relator
• Court: Texas Court of Appeals

597 S.W.3d 589

IN RE Teresa L. Ribelin COOK, Relator

NO. 14-19-00664-CR

Court of Appeals of Texas, Houston (14th Dist.).

Opinion filed February 25, 2020

Michael J. Durrschmidt, Michael D. Conner, Houston, for Relator.

John Lamar Brewer, Lester Blizzard, Houston, for Real party in interest Harris County District Attorney.

Scott A. Durfee, Houston, for Real party in interest The State of Texas.

Panel consists of Justices Jewell, Zimmerer, and Bourliot.

OPINION

Frances Bourliot, Justice Teresa L. Ribelin Cook's legal files were seized pursuant to a search warrant executed on her attorney's office. The Honorable Kelli Johnson, presiding judge of the 178th District Court of Harris County, signed an order on August 23, 2019, permitting a "taint team" from the Harris County District Attorney's Office ("HCDA's Office") access to Cook's files to search for evidence in the case against Cook's attorney. Cook filed a petition for writ of mandamus in this court asking that we compel Judge Johnson to vacate her August 23, 2019 order and direct that the files be returned to Cook. See Tex. Gov't Code § 22.221 ; see also Tex. R. App. P. 52. We conditionally grant the petition, in part, and deny it, in part.

BACKGROUND

Amy Holsworth Castillo is a former client of attorney Jared Woodfill ("Woodfill") and the Woodfill Law Firm, P.C. (the "Firm"). Castillo alleged that Woodfill misapplied funds from her divorce by using funds he had not yet earned on her case and spending those funds for services rendered on behalf of other clients. Bryan Vaclavik, the chief fraud examiner for the HCDA's Office, investigated Castillo's allegations by obtaining and reviewing bank statements of the Firm's IOLTA account.

Cook was also Woodfill's client. During Vaclavik's review of the Firm's IOLTA account, it appeared that Cook's funds were also used contrary to her attorney client agreement. Cook and Woodfill's attorney client agreement required Cook to pay a $75,000 retainer. Cook's $75,000 check was deposited into the Firm's IOLTA account on June 13, 2013. One day before Cook's check was deposited, the IOLTA account was overdrawn with a negative balance of $49,679.18. According to Vaclavik, Cook's funds were used to offset the negative balance and to cover a check payable to a third party unrelated to Woodfill's representation of Cook. Cook's billing invoice for the period of June 6 through June 12, 2013, showed that the Firm had only earned and expended $1,313.29 of Cook's retainer. On June 13, 2013, the IOLTA account's ending balance was $25,320.82, indicating that Woodfill had used more than $45,000 of Cook's retainer for purposes unrelated to her case.

In his affidavit in support of the search warrant, Vaclavik stated that he had reason to believe the Firm's office contained evidence of the felony offenses of misapplication of fiduciary property, theft, and money laundering. Vaclavik asked to be allowed to seize the following documents, among other items:

Any and all financial, legal files, documents, records, books, ledgers and correspondence(s) containing the names of Amy Holsworth Castillo and Teresa L. Ribelin Cook.

On November 11, 2018, the trial court signed a search warrant, authorizing the seizure of Cook's legal files from the Firm. The search warrant provides, in relevant part:

THEREFORE, YOU ARE COMMANDED to go straightaway to the offices of the Woodfill Law Firm, P.C., located at Three Riverway, Suite 750, Houston, Harris County, Texas 77056 for the purpose of searching for, seizing, and searching within when necessary, property constituting evidence used to commit the felony offenses of misapplication of fiduciary property, theft and money laundering as well as property or items, except the personal writings by the accused, constituting evidence of an offense or constituting evidence tending to show that a particular person committed an offense. These implements, instruments, property and evidence alleged in the attached affidavit include but are not limited to:

1. Any and all financial, legal files, documents, records, books, ledgers and correspondence(s) containing the names of Amy Holsworth Castillo and Teresa L. Ribelin Cook;

2. Any and all documents and records pertaining to the transfer of currency via financial instruments, automatic clearing house (ACH) or wires of United States or foreign currency, funds for the above individuals identified in item l;

3. Any and all the computer hardware, software, and peripherals that are believed to potentially contain some or all of the items described in this warrant; computers, central processing units, computer disks, disk drives, monitors, computer printers, modems, digital cameras, any memory devices that work with a digital camera, scanners, computer photographs, and any electronic data storage device, including but not limited to flash memory devices, and other storage media; any input/output peripheral devices, including but not limited to data security devices and related documentation; any and all cellphones, telephones, communication devices that are capable of storing pictures, video, text, caller identification devices and telephone recording equipment, including the stored data of such devices for the purpose of conducting an on-site or off-site search of these computer materials by any qualified forensic facility for imaging and analysis by experts and to retain all such computer materials within the forensic facility; and

4. Any logins and passwords for computers, software, file sharing access, telephones, communication devices owned by Jared Ryker Woodfill V and or the Woodfill Law Firm, P.C.

The search warrant was executed on November 12, 2018, and the Houston Police Department took 127 boxes of files belonging to Cook from the Firm.

Cook refused to waive her privileges to her files. The HCDA's Office tried to reach an agreement with Cook about how they could review her files. No agreement was reached. On July 2, 2019, Cook filed a brief regarding her seized files and asked the trial court to order the HCDA's Office to return her files to her. The trial court held an in-chambers hearing.

During the hearing, the Assistant District Attorney ("ADA") advised the trial court that the "taint team," which is comprised of ADAs who are not involved in the case, was ready to start going through Cook's files. Cook argued that permitting the taint team to look at her files would her violate constitutional right to privacy and her evidentiary privileges. The trial court urged the parties to reach an agreement about the review of Cook's files.

On August 22, 2019, the HCDA's Office filed a motion for protective order and procedure for review of confidential or privileged discovery materials, which would allow the taint team to conduct the review. On August 23, 2019, Cook filed a brief regarding the validity of the search warrant, and the trial court held another hearing the same day. The trial court signed the following order setting forth the procedure for the taint team's review of Cook's files:

COMES NOW, THE STATE OF TEXAS, ... moves this Court for a protective order to ensure that disclosure of potentially confidential or privileged materials related to this proceeding are appropriately limited. See TEX. R. EVID. 503 ; TEX. DISCIPLINARY R. PROFESSIONAL CONDUCT 1.05. At the same time, the undersigned.... move to the Court to allow limited members of the Harris County District Attorney's Office—namely, members of the taint team—and Defense Counsel full access to the alleged confidential or privileged material, and to establish a procedure for disclosure of non-confidential and non-privileged material. The alleged confidential or privileged material has not yet been viewed by the Harris County District Attorney's Office; however, in an abundance of caution, the State has constructed this procedure to prevent any confidential or privileged documents from reaching the prosecutor or prosecutors who are investigating the above-captioned matter.

1. This Order supplements all other discovery rules and orders.

2. This Order may be modified or amended for good cause. The parties shall submit any proposed modifications or amendments to this Court.

3. The alleged confidential or privileged materials relate to the seizure of evidence pursuant to the search warrants for Jared Woodfill's office, on or about November 12, 2018. The evidence in question consists of multiple boxes containing documents and the data stored on electronic devices seized in connection with the above search warrant.

4. The documentary evidence in question is stored in a secure location within the Harris County District Attorney's Office. The digital evidence is stored in a secure location at the offices of the United States Secret Service in Houston, Texas.

5. Until further Order of the Court, the evidence in question will be made available to the attorney of record for the defendant(s).

6. Until further Order of the Court, Assistant District Attorneys ... are permitted to review the alleged confidential or privileged materials, and are not permitted to discuss the content of these materials with other members of the Harris County District Attorney's Office or law enforcement. Members of the United States Secret Service forensic services team ... are necessary to image and/or format electronically stored data for review. Their review of the material made the subject of this Order is limited to that task.... [A]nalysts of the United States Secret Service who review the digital evidence as part of the taint team, are not permitted to discuss the content of these materials with members of the Harris County District Attorney's Office or law enforcement who are not a member of the taint team.

7. The alleged confidential or privileged materials will be assigned to three separate categories; namely, (1) evidence that the State and Defense agree is not subject to the attorney-client privilege, (2) evidence that the State and Defense agree is

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