Pope v. State

• Decision Date: 03 March 2005
• Docket Number: No. 2-03-195-CR.,2-03-195-CR.
• Citation: 161 S.W.3d 114
• Parties: Curtis Wayne POPE Jr., Appellant, v. The STATE of Texas, State.
• Court: Texas Supreme Court

161 S.W.3d 114

Curtis Wayne POPE Jr., Appellant, v. The STATE of Texas, State.

No. 2-03-195-CR.

Court of Appeals of Texas, Fort Worth.

December 23, 2004.

Rehearing Overruled March 3, 2005.

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The Kearney Law Firm, Em. Reagan Wynn, Fort Worth, for Appellant.

Tim Curry, Crim. Dist. Atty., Charles M. Mallin, Asst. Crim. Dist. Atty., Chief of the Appellate Section, Edward L. Wilkinson, David Lobingier, Joe Shannon, Jr., Asst. Crim. Attys, Fort Worth, for Appellee.

PANEL B: HOLMAN, WALKER, and McCOY, JJ.

OPINION

BOB McCOY, Justice.

INTRODUCTION

A jury found appellant, Curtis Wayne Pope, Jr., guilty of murder, and the trial judge sentenced him to life imprisonment. In six points on appeal, Pope complains that the trial court erred by (1) allowing the State to elicit testimony regarding Pope's appointed DNA expert in violation of the work-product component of his attorney-client privilege, (2 & 3) excluding testimony elicited by Pope on cross-examination of certain State witnesses in violation of Pope's Sixth Amendment right of confrontation, (4) improperly instructing the jury, (5) allowing improper jury argument by the State, and (6) overruling his motion for new trial.¹ We will affirm.

FACTUAL AND PROCEDURAL BACKGROUND

On February 22, 2000, the body of a stabbing victim was found inside a trailer at a construction site. Blood was found on the office furniture, the floor of the office, and the victim's clothes. DNA testing of the blood conducted by GeneScreen, an independent lab, revealed that some of this blood was from Pope, and he was charged with murder. A plea of not guilty was entered on his behalf.

Prior to trial, Pope filed a Motion for Independent Examination of DNA Evidence, requesting that Robert Benjamin be permitted to "review and examine all reports and testing already performed ... for purposes of deoxyribonucleic acid (DNA) testing and comparison." The trial court granted the motion, and the defense later designated Dr. Benjamin as its DNA expert.

At trial, Pope's defense counsel cross-examined the State's DNA experts, William Watson and Jamie King, regarding the method of DNA testing used, the level of "professional judgment" needed to perform DNA analysis, and whether errors were made in the analysis. On redirect, the trial court allowed the State, over objection of defense counsel, to introduce testimony regarding Dr. Benjamin's qualifications, the materials provided to him, and whether he had requested additional testing. Pope's counsel objected to this line of questioning, partially on the grounds that it violated his client's work-product and attorney-client privileges. The trial court overruled this objection and allowed the testimony. Defense counsel did not call Dr. Benjamin to testify at trial, nor did they present evidence that would indicate to the jury that the defense had even employed a DNA expert.

Part of defense counsel's trial strategy concerned the mislabeling of samples submitted for DNA testing. In that regard, defense counsel sought to elicit testimony on cross-examination from Karla Carmichael and Aliece Watts regarding problems at the Fort Worth Police Department's Crime Lab (the "Crime Lab").² The testimony was presented outside the presence of the jury in a bill of exception.

In the bill, Carmichael testified that there had been some problems at the Crime Lab with the "misidentification ... of samples." However, when questioned further, Carmichael testified only to a problem with the ventilation hoods at the lab and to problems involving DNA testing performed by the Crime Lab. On redirect, Carmichael testified that none of the problems had anything to do with the handling or processing of evidence, but arose in the context of DNA analysis, and that the Crime Lab did not do the DNA testing in this case, but instead submitted the samples to Orchid Cellmark³ for DNA testing.

In the bill, Watts acknowledged that there had been "some problems with the handling of evidence" at the Crime Lab and that there had been some investigations of the handling of evidence at the Crime Lab, but stated that she did not know if the accusations had ever been substantiated. Further, although Watts acknowledged that there had been accusations of mishandling of evidence, and that as a result there existed the possibility that the evidence in this case could have been mishandled, she indicated by her testimony that she had no evidence that the samples in this case had been mishandled.

Pope was found guilty by the jury and sentenced to life imprisonment by the trial judge. On the day that the jury returned its verdict, Carmichael was placed on administrative leave from her employment at the Crime Lab. She was subsequently terminated for, among other things, "[her] failure to perform assigned work in a satisfactory manner" and "[her] carelessness or negligence in performing work."

Pope filed this appeal on May 9, 2003. He later filed a Motion for New Trial asserting violations of his due process rights and his Sixth Amendment right to confrontation. Pope's Motion for New Trial was overruled by operation of law on July 23, 2003.

WORK-PRODUCT PRIVILEGE

In his first point, Pope complains that the work-product component of his attorney-client privilege⁴ was violated when the trial court allowed the State to put on testimony indicating that his DNA expert, Dr. Benjamin, had been provided with the State's DNA testing and had failed to request additional testing or question the testing.⁵ Further, Pope complains that the trial court committed error when it allowed the State to put on this testimony and then point out that Dr. Benjamin was not called by the defense to testify. Pope argues that this violates the work-product component of his attorney-client privilege because the jury could have only concluded from this testimony (and the State's closing argument) that Dr. Benjamin believed that the testing was properly done.

The State contends that the testimony regarding the materials provided to Dr. Benjamin was not work-product and therefore not privileged and that the prosecution may comment on a defendant's failure to call an expert witness when the comment is directed at a disputed issue.

A. Standard of Review

We review the trial court's decision to admit or exclude evidence under an abuse of discretion standard. Burden v. State, 55 S.W.3d 608, 615 (Tex.Crim.App. 2001); Green v. State, 934 S.W.2d 92, 101-02 (Tex.Crim.App.1996), cert. denied, 520 U.S. 1200, 117 S.Ct. 1561, 137 L.Ed.2d 707 (1997); Montgomery v. State, 810 S.W.2d 372, 379-80 (Tex.Crim.App.1990). The test for abuse of discretion is not whether, in the opinion of the reviewing court, the facts present an appropriate case for the trial court's action; rather, it is a question of whether the court acted without reference to any guiding rules or principles, and the mere fact that a trial court may decide a matter within its discretionary authority differently than an appellate court does not demonstrate such an abuse. Montgomery, 810 S.W.2d at 391. We will not reverse a trial court's ruling on the admission of evidence as long as the ruling is within the zone of reasonable disagreement. Id.

B. Analysis

Work-product

The United States Supreme Court has described the work-product doctrine as sheltering "[a]t its core ... the mental processes of the attorney, providing a privileged area within which [an attorney] can analyze and prepare his client's case." Washington v. State, 856 S.W.2d 184, 187 (Tex.Crim.App.1993) (quoting United States v. Nobles, 422 U.S. 225, 238, 95 S.Ct. 2160, 2170, 45 L.Ed.2d 141 (1975)). The doctrine extends not only to the work-product of the attorney, but to the work-product of his agents. Id. Further, the Texas Court of Criminal Appeals has indicated that the work-product of a court-appointed DNA expert falls within the privilege. See Taylor v. State, 939 S.W.2d 148, 152 (Tex.Crim.App.1996).

While Texas privileges are found in the Texas Rules of Evidence and the Texas Rules of Criminal Procedure, Rule 501 of the Texas Rules of Evidence provides, in relevant part: "Except as otherwise provided by Constitution, by statute, by these rules, or by other rules prescribed pursuant to statutory authority, no person has a privilege to ... (2) refuse to disclose any matter; [or] ... (4) prevent another from being a witness or disclosing any matter or producing any object or writing." TEX.R. EVID. 501.

Article 39.14 of the Texas Code of Criminal Procedure addresses the discovery of work-product in a criminal case. TEX.CODE CRIM. PROC. ANN. art. 39.14 (Vernon Supp.2004-05). Article 39.14(a) provides that the "work-product of counsel in the case and their investigators and their notes or report" is exempt from discovery. Id. art. 39.14(a). However, the Texas Code of Criminal Procedure also provides that a trial court may order disclosure of the "name and address of each person the other party may use at trial to present evidence under Rules 702, 703, and 705" of the Texas Rules of Evidence. Id. art. 39.14(b). The State argues that because the Code of Criminal Procedure in article 39.14(a) acknowledges that a party's work-product is exempt from disclosure, while at the same time providing for the discovery of a testifying expert's identity in article 39.14(b), the Texas legislature has, by implication, declared that a testifying expert's identity is not privileged work-product. We agree that a testifying expert's identity, once disclosed, is not work-product.

As pointed out by the State, the defense designated Dr. Benjamin as their testifying expert for trial. Because they did so, we conclude that Dr. Benjamin's identity is no longer privileged.⁶ See art 39.14(a) & (b). Further, testimony regarding the witnesses' knowledge of Dr. Benjamin's qualifications, and the materials provided to him, cannot be privileged because they do not constitute work-product...