State v. Deangelis

• Citation: 116 S.W.3d 396
• Decision Date: 28 August 2003
• Docket Number: No. 08-01-00205-CR.,08-01-00205-CR.
• Parties: The STATE of Texas, Appellant, v. George A. DeANGELIS, Appellee.
• Court: Court of Appeals of Texas

116 S.W.3d 396

The STATE of Texas, Appellant, v. George A. DeANGELIS, Appellee.

No. 08-01-00205-CR.

Court of Appeals of Texas, El Paso.

August 28, 2003.

Jaime E. Esparza, Dist. Atty., El Paso, for Appellant.

Luis E. Islas, Attorney At Law, El Paso, for Appellee.

Before Panel No. 1 LARSEN, ANN CRAWFORD McCLURE, and CHEW, JJ.

OPINION

ANN CRAWFORD McCLURE, Justice.

In this case of wide public interest bearing overtones of scandal and political intrigue, we consider whether conversations between the Chief of Staff of the El Paso Police Department and an Assistant City Attorney are protected by the attorney-client privilege. Confidential information was leaked to the local newspaper and a television station concerning an ongoing investigation into administrative issues within the police department. Assistant Chief George DeAngelis and Deputy Chief Cerjio Martinez were considered possible suspects. A criminal investigation into the leak itself focused on misuse of official information proscribed by Section 39.06 of the Texas Penal Code. Neither DeAngelis nor Martinez was indicted for that offense. Instead, they were indicted for aggravated perjury based on inconsistencies between sworn statements to the grand jury and surreptitiously tape-recorded conversations with El Paso Assistant City Attorney, Stephanie Osburn. After indictment, DeAngelis sought suppression of all evidence obtained from Osburn based upon attorney-client privilege. Following evidentiary hearings, the trial court suppressed all of DeAngelis's statements to and conversations with Osburn.

The State has filed several interlocutory appellate proceedings arising from the prosecution of DeAngelis and Martinez. This appeal was previously dismissed for want of jurisdiction based upon then-existent precedent.¹ The Court of Criminal Appeals reversed and remanded for consideration on the merits. State v. DeAngelis, 53 S.W.3d 905 (Tex.App.-El Paso 2001), rev'd, 71 S.W.3d 345 (Tex.Crim.App.2002). We now undertake that task. We have endeavored to offer a complete factual summary but large portions of the record were sealed by the trial court. We have reviewed all documents under seal but will avoid direct reference to them.

FACTUAL SUMMARY

George DeAngelis has been an officer with the El Paso Police Department for more than twenty-seven years. At the time of the events in issue, he was the Assistant Chief of Police, second in command, and Chief of Staff.² He was in charge of the Office of Regional Operations, which supervises the five regional commands. He conducted oversight of SWAT, Canine, Bomb Squad, and the Headquarters Traffic Unit. He was also the chairperson of the Shooting Review Board which reviews policy compliance by any officer who discharges a weapon either in the line of duty or off-duty. Cerjio Martinez, a deputy chief in the Department, has also been indicted for perjury; his case proceeds separately and is presently before us in State v. Martinez, Cause No. 08-01-00212-CR.

Stephanie Osburn began employment as an Assistant City Attorney in April 1999. She described her job as representing the City of El Paso on department disciplinary matters, criminal subpoenas, and expungements. She was assigned to Internal Affairs at the police department and maintained an office there as well as at City Hall. Police officers were agents of the City who fell within the representation umbrella. Osburn dispensed legal advice to the upper echelons of the police department—captains and above. As was common practice within the City Attorney's Office, Assistant City Attorneys routinely addressed documents to individual police officers bearing a label that the communications were privileged. Osburn thought she had major input into the decisions made by the police leadership and hoped they would act on her advice.

On or about August 27, 1999, DeAngelis met with a confidential informant and received information concerning illegal activity by Officer Luis Cortinas, who served as the personal administrative assistant to the Chief of Police, Carlos Leon. Cortinas had allegedly provided vehicle descriptions and license plate numbers of narcotics officers to individuals associated with the drug trade. On August 30, 1999, DeAngelis contacted the FBI to confirm what the informant had told him. DeAngelis was told that the Cortinas case had been closed because of his status as Leon's assistant and the FBI did not want to damage its working relationship with the police department. DeAngelis drafted a letter memorandum to Chief Leon which he delivered the next day. In the memo, he formally requested that Cortinas be removed as the Chief's administrative assistant and that an investigation be conducted. DeAngelis specifically asked Leon to keep the memo confidential and that Cortinas not be made aware of it. Cortinas was reassigned on September 1, 1999, but no investigation followed.

In January 2000, DeAngelis showed Osburn the letter memo that he had written to Chief Leon. For the next several months, Osburn and DeAngelis spoke several times a day. The calls were occasionally about work, but tended to be more personal in nature³ and lasted anywhere from one minute to two hours, according to telephone records. DeAngelis would also call her at home on her personal cell phone during the evening hours. He often criticized Chief Leon in his conversations with her.

By March, DeAngelis suspected that Leon had told Cortinas about the memo. DeAngelis was approached by Assistant Chief J.R. Grijalva, who told him that rumors about a memo had been circulating and that the media was interested. He said if the letter became public, it would "take down" the mayor and the Chief. DeAngelis denied knowing anything about the memo at that point. In April, DeAngelis received what he considered a questionable travel request from Cortinas. Upset by the request, DeAngelis met with Leon and asked him again to initiate an investigation into Cortinas's activities. DeAngelis asked Leon why he was so hesitant to take any action against Cortinas and Leon replied, "I owe him." When DeAngelis persisted, Leon told him to conduct his "stupid investigation" and to assign Assistant Chief Grijalva and Deputy Chief Patrick Gailey. Once Leon authorized him to start the investigation, DeAngelis briefed Grijalva, Gailey, Assistant City Attorney Chris Borunda, the FBI, and Assistant Chief Richard Wiles, who was the head of Internal Affairs.

On April 13, DeAngelis lodged a formal complaint with the City concerning the administrative issues raised in his August 1999 memo as well as other serious allegations of misconduct by Chief Leon. Assistant City Attorney Chris Borunda began an investigation. DeAngelis was placed on sporadic administrative leave but his contact with Osburn continued. During many of their conversations, DeAngelis talked about expecting retaliation and wanting whistleblower protection. Osburn encouraged him to use the word "whistleblower" and told him to document any retaliatory action. DeAngelis communicated with several private attorneys for legal advice on his whistleblower claim against the City. Chief Leon was given notice and told to "cease and desist" any retaliation, but DeAngelis claimed he continued to be under police surveillance.

On May 26, a sixteen-page synopsis of the Cortinas investigation was finalized. DeAngelis arranged for copies to be delivered to Borunda and the FBI and left his personal copy on his desk in a folder. Around May 30, Osburn, DeAngelis, and Martinez had lunch together. There was a general venting by all of them concerning their dissatisfaction with Chief Leon. DeAngelis commented that he was considering retirement and that he could "go public" at that point and talk with the media.

In early June, The El Paso Times requested a copy of the sixteen-page Cortinas report. DeAngelis received a telephone call from Patrick McDonnell, a reporter, advising DeAngelis that the newspaper planned to run a story involving criminal allegations against Cortinas. Toward the end of the month, Borunda submitted her investigative report of DeAngelis's formal complaint to the mayor, who publicly reprimanded Chief Leon on June 26. In their conversations with one another, Osburn, DeAngelis, and Martinez criticized the accuracy and credibility of Borunda's investigation. DeAngelis thought that little action had been taken against Chief Leon and he was frustrated with the results, which he termed a "whitewash."

The very next day, an El Paso television station reported that it had received a sixteen-page confidential report relating to a criminal investigation of Officer Cortinas. The report was purportedly leaked by an anonymous source within the El Paso Police Department. The El Paso Times printed the story on June 28. The same day, it submitted an open records request about other allegations of misconduct. Assistant Chief Richard Wiles, head of Internal Affairs, initiated a separate investigation into the leak.⁴ Wiles assigned Lieutenant David Norman to the investigation, and ultimately, the Texas Rangers were called in to assist. Osburn was relieved of her duties with the police department in late June,⁵ but she did not alert DeAngelis to the fact.

On July 6 or 7, Martinez called Osburn and asked if she would be willing to talk to the media about the flaws in Borunda's investigation. She declined and reported the request to Detective George Althoff. On August 2, Norman confronted Osburn and accused her of misusing official information. He threatened her with criminal prosecution and the loss of her job and law license. When Osburn asked what he wanted her to do, Norman presented her with an immunity agreement prepared in advance and urged her cooperation in tape recording conversations with both Martinez and DeAngelis. Osburn did not discuss these events with anyone else in the City Attorney's office before agreeing to participate. The calls were placed from City...