Morrison v. State, 06-17-00159-CR

CourtCourt of Appeals of Texas
Citation575 S.W.3d 1
Docket NumberNo. 06-17-00159-CR,06-17-00159-CR
Parties Ashley Eva MORRISON, Appellant v. The STATE of Texas, Appellee
Decision Date27 March 2019

Michael D. Mosher, Law Office of Michael D. Mosher, The Mosher Justice Center, 50 North Main, Paris, TX 75460, for Appellant.

Gary D. Young, Lamar County & District Attorney, 119 North Main, Paris, TX 75460, Jeffrey W. Shell, Rockwall County District Attorney's Office, 1111 E Yellowjacket Ln, Ste 201, Rockwall, TX 75087, for Appellee.

Before Morriss, C.J., Burgess and Moseley,* JJ.


Opinion by Justice Burgess

I. Introduction

This case involves two principles of law. First, "[t]he Sixth Amendment ... imposes on the State an affirmative obligation to respect and preserve the accused’s choice to seek assistance," which means, "at the very least, the prosecutor ... [has] an affirmative obligation not to act in a manner that circumvents and thereby dilutes the protection afforded by the right to counsel." Maine v. Moulton , 474 U.S. 159, 170–71, 106 S.Ct. 477, 88 L.Ed.2d 481 (1985). Because billing records exist to secure an indigent defendant’s right to the appointment of counsel, the prosecutor’s "affirmative obligation" requires a prosecuting attorney to refrain from reviewing indigent defense billing records during the case against the defendant, regardless of how the prosecutor may acquire that information and regardless of whether any privilege attendant to those records was waived by public disclosure.1

If the prosecutor nevertheless reviews those records, he purposefully intrudes into the defendant’s attorney-client relationship. If, at trial, (1) any of "the State’s evidence originated in the [intrusion]," (2) the information obtained from the records was "used in any other way to the substantial detriment of [the defendant]," or (3) the State learned details about the defendant’s trial preparations from the records, then the intrusion prejudiced the defendant. Weatherford v. Bursey , 429 U.S. 545, 552, 97 S.Ct. 837, 51 L.Ed.2d 30 (1977). Error of this type is fundamental and may be raised on appeal even in the absence of a trial objection.

Second, notwithstanding the first principle, a defense attorney who (1) creates detailed billing records disclosing confidential client communications and attorney work product, (2) fails to protect strategic defense information from public disclosure during the payment process, or (3) fails to take remedial actions after learning that the prosecuting attorney has reviewed his billing records provides ineffective assistance of counsel. Because the State violated the first principle, and because defense counsel violated the second principle, we find that both Ashley Eva Morrison’s Sixth Amendment right to counsel and her Sixth Amendment right to be free from State intrusion into the attorney-client relationship were violated. Because the State acquired and used useful information from those records, we find that Morrison was prejudiced by the State’s intrusion and defense counsel’s deficient performance. However, because we find that this prejudice can be remedied by granting Morrison a new trial and suppressing the billing records and all evidence derived therefrom on remand, we deny Morrison’s request to dismiss the indictment. Accordingly, we reverse the trial court’s judgment and remand this case to the trial court for a new trial.

II. Facts

It is uncontroverted that sixteen-year-old Christian Sims (Sims) shot and killed his grandmother, Annie Lois Sims (Annie). Before the shooting, Sims and his girlfriend, Ashley Morrison (Morrison), ran away from Morrison’s home where they had been living together with Morrison’s family. That same day, they broke into Sims’s aunt’s house. While there, Sims retrieved a gun and travelled to Annie’s home, where he murdered her. While Sims was at Annie’s home committing the murder, Morrison was at Sims' aunt’s house. The State’s theory at trial was that Morrison was guilty of murder under the law of parties because (1) Morrison knew, in advance, that Sims intended to rob and either assault or kill Annie and (2) she assisted Sims in carrying out that plan. Accordingly, the key fact question at trial was whether Morrison was involved in Annie’s murder.

The trial court found that Morrison was indigent and appointed counsel to represent her at trial; additionally, the trial court approved funding for an investigator to assist in Morrison’s defense. Before trial, defense counsel requested interim payment for his services and the services of the defense investigator. To support the payment request, defense counsel submitted his and the investigator’s billing records to the trial court.2 Defense counsel’s billing records were highly detailed and disclosed confidential attorney work product and attorney-client communications.3

At some point, the unredacted billing records were filed with the district clerk.

The evidence against Morrison was circumstantial.4 Before trial, the State obtained copies of defense counsel’s billing records and reviewed them. Based on entries from those records, the State pursued a line of questioning of Morrison’s mother, Misty, suggesting that Morrison admitted her involvement in the murder in a letter she wrote to Misty from jail. The State also suggested that defense counsel had retrieved the letter from Misty prior to trial and was refusing to produce it.5 Yet, there was no proof that any letter containing an admission by Morrison ever existed.6 The jury found Morrison guilty of murder under the law of parties and sentenced her to thirty years' imprisonment.

III. First Point of Error—Whether the State Violated Morrison’s Sixth Amendment Right to Counsel
A. Introduction

In her first point of error, Morrison argues that the State violated her Sixth Amendment rights when it obtained, reviewed, and then used information from her attorney’s billing records against her.7 The State responds that it did not purposefully intrude into Morrison’s attorney-client relationship because the billing records were filed as public records, and therefore, it was entitled to review those records. In support of this argument, the State only cites general cases holding that the duties of clerks are ministerial in nature and that the purpose for those duties is to ensure that all persons have access to public documents. See Cobra Oil & Gas Corp. v. Sadler , 447 S.W.2d 887, 896 (Tex. 1968) ; Morales v. State , 11 S.W.3d 460, 465 (Tex. App.—El Paso 2000, pet. ref'd). In view of the statutory and constitutional implications of indigent defense representation, and the lack of justification for the State to obtain and review indigent defense counsel’s billing records, we find that the State’s review of defense counsel’s billing records in this case constituted a purposeful intrusion into Morrison’s attorney-client relationship.

B. Applicable Law

The United States Supreme Court has held that the State violates a defendant’s Sixth Amendment right to counsel if it purposefully intrudes into that relationship and the intrusion "produce[s], directly or indirectly, any of the evidence offered at trial." Weatherford , 429 U.S. at 552, 97 S.Ct. 837. An intrusion "produce[s], directly or indirectly, any of the evidence offered at trial" when (1) "the State’s evidence originated in the [intrusion]," (2) the intrusion is "used in any other way to the substantial detriment of [the defendant]," or (3) the State learns details about the defendant’s trial preparation. Id. at 554, 97 S.Ct. 837 ; see also Murphy v. State , 112 S.W.3d 592, 602 (Tex. Crim. App. 2003) (holding that "the State’s intrusion into the attorney-client relationship violates a defendant’s constitutional right to counsel when the defendant is prejudiced by the violation"). The United States Supreme Court also has held that, "at the very least, the prosecutor ... [has] an affirmative obligation not to act in a manner that circumvents and thereby dilutes the protection afforded by the right to counsel." Moulton , 474 U.S. at 170–71, 106 S.Ct. 477. Finally, a purposeful intrusion can occur even where the State does not create the circumstances that made the information available if the State exploits an opportunity to obtain information otherwise protected from disclosure. See id. at 176, 106 S.Ct. 477 (holding that a "knowing exploitation by the State of an opportunity to confront the accused without counsel being present is as much a breach of the State’s obligation not to circumvent the right to the assistance of counsel as is the intentional creation of such an opportunity"); see also Shillinger v. Haworth , 70 F.3d 1132, 1141 (10th Cir. 1995) (holding that prosecutor purposefully intruded into the attorney-client relationship when he obtained information regarding defense counsel’s practice sessions with defendant prior to trial from jailer assigned to guard defendant during the sessions).

C. Analysis

To determine whether the State intruded into Morrison’s attorney-client relationship by reviewing defense counsel’s billing records, we first consider the law governing the appointment and compensation of defense counsel for indigent defendants.

1. Attorney Billing Records Are Attorney Work Product

Attorney billing records constitute attorney work product. See In re Nat'l Lloyds Ins. Co. , 532 S.W.3d 794, 803 (Tex. 2017) (holding that "a request to produce all billing records invades a party’s work-product privilege because, cumulatively, billing records constitute a mechanical compilation of information that, at least incidentally, reveals an attorney’s strategy and thought processes"). Thus, "[d]iscovery of billing records in their entirety would provide a roadmap of how the [party] plans to litigate not only this particular case, but all other ... cases." Id. The Court of Criminal Appeals has held that the attorney work-product privilege also applies in criminal cases, noting, "The work product...

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