Sanford v. State

• Decision Date: 06 January 2000
• Docket Number: No. 08-98-00094-CR,08-98-00094-CR
• Citation: Sanford v. State, 21 S.W.3d 337 (Tex. App. 2000)
• Parties: (Tex.App.-El Paso 2000) DONALD RAY SANFORD, Appellant v. THE STATE OF TEXAS, Appellee
• Court: Texas Court of Appeals

Page 337

21 S.W.3d 337 (Tex.App.-El Paso 2000)

DONALD RAY SANFORD, Appellant v. THE STATE OF TEXAS, Appellee.

No. 08-98-00094-CR

COURT OF APPEALS EIGHTH DISTRICT OF TEXAS EL PASO, TEXAS

January 6, 2000

Appeal from 358th District Court of Ector County, Texas (TC# D-26,039) [Copyrighted Material Omitted] Before Panel No. 2 Barajas, C.J., McClure, and Chew, JJ.

O P I N I O N

ANN CRAWFORD McCLURE, Justice

Donald Ray Sanford appeals from convictions for the offenses of aggravated kidnapping and the lesser-included offense of aggravated assault with a deadly weapon.¹ A jury found Appellant guilty, and with respect to each offense, assessed punishment at imprisonment for a term of ten years, probated for ten years, and a fine of $10,000. The trial court entered in each judgment an affirmative finding on the use of a deadly weapon. TEX.CODE CRIM.PROC.ANN. art. 42.12, 3g(a)(2)(Vernon Supp. 1999). We reverse.

FACTUAL SUMMARY

Mike Herrington, the complainant, met Appellant in 1991 or 1992 when he purchased a sailboat from Appellant at a boat show. Herrington worked in law enforcement in Ector County for several years; he additionally sold Shaklee products and worked for Appellant on a contract basis in the sailboat business. Some of his tasks included installing radios and hauling sailboats from Florida to Odessa. Appellant and Herrington spent a significant amount of time together and they became friends. After being terminated from his position as investigator with the County Attorney's Office in late 1993, Herrington began working more often with Appellant but still on a part-time basis. In January of 1996, Herrington abruptly severed his relationship with Appellant over a business deal with one of Herrington's friends. He did not have any contact with Appellant until June of that year when Appellant had lunch with Herrington and accused him of burglarizing his home and stealing $100,000 from a safe. Herrington testified that he and Appellant "left on very heated terms" and he had no further contact with Appellant until November. Although the Sheriff's Department conducted an investigation no charges were ever filed against Herrington.

On November 13, 1996, Herrington's wife, Sandra, received a telephone call from a woman who identified herself as Sharon Day. She said that a friend told her that the Herringtons sold Shaklee weight loss products. Sandra asked if Day would like to come to their home to look at the products and discuss them but Day stated that she was in the process of moving back to Odessa. She asked if someone could meet her the following morning at a house located at 61st and Beatty since she would be moving some things into it. Ms. Herrington agreed and they set up an appointment for Herrington to meet with Day at 8:30 on the following morning. Ms. Herrington told Day that her husband would be driving a white Suburban. When Herrington came home that evening, Ms. Herrington told him about the appointment.

The following morning, Herrington gathered his Shaklee materials and drove his Suburban to the address, arriving at approximately 8:30. He saw a house that appeared vacant and had a "For Sale" sign in the window. At first he drove by since he did not see anyone at the house, but he turned around when he saw a small red car pull into the driveway. Herrington pulled in behind the vehicle, gathered some of the Shaklee materials and exchanged introductions with Day who had approached the front of his vehicle by that time. When he asked if they could go inside, Day said that she did not have a key yet and suggested that they just use the hood of the car. After Herrington turned around and placed the papers on the hood, he sensed someone behind him. He turned and saw Appellant walking towards him. When he asked what Appellant was doing there, he replied, "I am here to arrest you." Herrington saw that Appellant was wearing a black nylon shoulder holster which held a pistol and two clips. As Herrington turned to leave and get into his car, Appellant blocked his path so Herrington shoved him in the chest. Appellant stepped backwards about three steps, pulled the gun out of the holster, and shot Herrington in the leg. Believing Appellant was going to shoot him again, Herrington dove towards Appellant to get the gun away from him. Herrington landed on top of Appellant, who repeatedly bit Herrington's ear and arm. When Herrington heard Appellant repeatedly yelling for Day to get the gun, he became afraid that Day would shoot him so he stopped fighting. Appellant rolled over on top of Herrington and used some plastic ties to handcuff Herrington's hands behind his back. Appellant and Day then picked up Herrington, and threw him against the passenger side of the Suburban before putting him on the floor of the vehicle. Herrington heard Appellant tell Day to put ties on his legs but he could not see who actually restrained him. Appellant then went to the front of the Suburban and gathered the Shaklee materials that had been scattered during the scuffle. Appellant found the keys in Herrington's pocket and they drove away.

In the meantime, Herrington, who was laying on his back, had been able to remove a Leatherman knife from a scabbard on his belt and cut the plastic tie that bound his hands. He could not immediately cut his legs free because they were placed across the front seat in the view of Appellant. Herrington also knew they were traveling too fast to be able to leap from the vehicle so he waited until they approached a light, hoping that they would have to stop. When Appellant slowed the vehicle to turn, Herrington quickly cut his legs free and dove into the front seat in an effort to throw the vehicle into park. Appellant reached down into a bag on the floorboard and pulled out the same pistol. Herrington dropped his knife and grabbed the pistol. As the two men struggled, the gun discharged into the bag on the floorboard. Herrington was eventually able to get the weapon and he demanded that Appellant drive him to a hospital. Appellant complied and took Herrington to an Odessa hospital. As he got out of the vehicle, Herrington told Appellant, "You might as well go home, because they are going to come get you." Appellant drove away in the Suburban and, according to hospital records, Herrington walked into the emergency room at 9:08 a.m. He told them that he had been shot and he had a pistol in the waistband of his pants. Hospital security seized the weapon and emergency room personnel treated Herrington for the gunshot wound.

Dr. Michael Simmons, the treating physician, examined Herrington and found that a bullet entered Herrington's leg above the knee and exited behind the leg, narrowly missing the femoral artery. He also found human bite marks on Herrington's ear, left trapezius, and the rear of his left shoulder. Law enforcement officers recovered Herrington's Suburban approximately one and a half hours later after receiving information from an attorney who represented Appellant.

VIOLATION OF ATTORNEY-CLIENT PRIVILEGE

In the first issue presented on appeal, Appellant maintains that the admission of testimony that a law enforcement officer, after speaking with Appellant's attorney, went immediately to a certain location and recovered the complainant's vehicle violated the attorney-client privilege.² Relying on Fuller v. State, 835 S.W.2d 768 (Tex.App.--Eastland 1992, pet. ref'd), the State argued in the trial court that Appellant waived the privilege when his attorney revealed the information about the vehicle's location to law enforcement authorities. The State makes the additional argument on appeal that the privilege does not apply because counsel would have become a party to the offense had he not disclosed this information. We disagree with both of the State's arguments.

Joel Perkins, an investigator with the Ector County Sheriff's Department, testified that on the morning of November 14, 1996, he was assigned to go to the law office of Michael McLeaish in Odessa. The reason for this assignment was not made known in the trial court. He arrived at the office at 10:21 a.m. and saw Appellant and his wife sitting in McLeaish's office. He also saw a van marked "Sanford Sails" parked outside of the office. Perkins met with McLeaish and then went directly to the Ector County Coliseum where he found Herrington's Suburban. They towed the vehicle to the Sheriff's Department so that they could gather evidence.

During the course of a hearing on the admissibility of this evidence, the State did not call McLeaish to testify about these events. However, the prosecutor represented to the trial court, without objection, that Perkins asked McLeaish, "Do you know where Mr. Herrington's vehicle is?"³ McLeaish replied, "Just a minute" and went back inside of his office. He came back out and told Perkins, "It might be at the coliseum and it might have the keys in it." Additionally, Appellant testified outside of the jury's presence that he went to McLeaish's office for the purpose of seeking legal counsel. He hired McLeaish to represent him during the course of this meeting and paid him by check. At one point during the meeting, Appellant saw through a large glass wall in McLeaish's office that Perkins had walked into the office. Appellant knew Perkins because he had investigated the burglary at Appellant's home. When McLeaish saw Perkins, he immediately walked outside. Appellant assumed that they were having a conversation but he could not see them. In a few moments, McLeaish came back into the room and asked Appellant, "Where is the Suburban?" Appellant stated, "At the coliseum." Without further comment, McLeaish left the room again. Appellant did not ask McLeaish why he wanted that information or what he intended to do with it. Further, McLeaish did not ask Appellant whether he wished to waive his attorney-client privilege. The trial court admitted Perkins' testimony over Appellant's objections...