State v. Martinez

• Decision Date: 28 August 2003
• Docket Number: No. 08-01-00212-CR.,08-01-00212-CR.
• Citation: 116 S.W.3d 385
• Parties: The STATE of Texas, Appellant, v. Cerjio MARTINEZ, Appellee.
• Court: Texas Court of Appeals

116 S.W.3d 385

The STATE of Texas, Appellant, v. Cerjio MARTINEZ, Appellee.

No. 08-01-00212-CR.

Court of Appeals of Texas, El Paso.

August 28, 2003.

[116 S.W.3d 387]

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

John P. Mobbs, 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 a deputy police chief 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. Deputy Chief Cerjio Martinez and Assistant Chief George DeAngelis 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 Martinez nor DeAngelis 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, Martinez filed a motion to suppress all evidence obtained from Osburn based upon attorney-client privilege. Following evidentiary hearings, the trial court suppressed all of Martinez's statements to and conversations with Osburn.

The State has filed several interlocutory appellate proceedings arising from the prosecution of Martinez. By separate order, the trial court suppressed Martinez's statement to the grand jury. We originally affirmed, but the Court of Criminal Appeals affirmed in part and reversed in part. State v. Martinez, 92 S.W.3d 10 (Tex.App.-El Paso 2001), aff'd in part, rev'd in part, 91 S.W.3d 331 (Tex.Crim.App.2002). The case is now pending before us on remand on the issue of whether Martinez's statement was voluntary and it will be addressed by separate opinion. The State also sought mandamus relief, contending that the trial court lacked jurisdiction to render the order appealed from here because of the pendency of its first interlocutory appeal involving the grand jury statement. We denied relief. In re The State of Texas, 50 S.W.3d 100 (Tex.App.-El Paso 2001, orig. proceeding). 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. Martinez, 53 S.W.3d 903 (Tex.App.-El Paso 2001), rev'd, 70 S.W.3d 894 (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, including grand jury testimony. We have reviewed all documents under seal but will avoid direct reference to them.

FACTUAL SUMMARY

Cerjio Martinez has been an officer with the El Paso Police Department for over twenty years. In January 2000, he was promoted to deputy chief. In his new position, he supervised over 200 officers assigned to Central Command, including five commanders and four captains. George DeAngelis was an assistant chief in the El Paso Police Department.² He has also been indicted for perjury; his case proceeds separately and is presently before us in State v. DeAngelis, 08-01-00205-CR, 116 S.W.3d 396, 2003 WL 22023563 (Tex.App.-El Paso 2001).

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.

In January 2000, DeAngelis showed Osburn a memo he had written to Chief of Police Carlos Leon on August 31, 1999. In the memo, he formally requested that Chief Leon remove Officer Luis Cortinas from his position as Leon's administrative assistant due to his involvement in activities which could bring discredit to the department. DeAngelis acknowledged that he had met with the FBI before writing the letter and his suspicions about Cortinas had been confirmed. By January, DeAngelis was concerned about the status of the investigation and discussed the issue with Osburn. Osburn began communicating with DeAngelis on a daily basis. DeAngelis often criticized Chief Leon in his conversations with Osburn. After Martinez was promoted to deputy chief in January 2000, he also began dealing with Osburn on a frequent basis. Osburn testified that she was "dealing with Chief Martinez as a lawyer and on legal matters involving the El Paso Police Department." While the record is silent on the details, it does reveal that Osburn was also engaged in a personal relationship with Martinez from January until April 2000. They spoke daily, discussed "all kinds of issues" and more than just City business. Like DeAngelis, Martinez had no hesitation about criticizing Chief Leon in his conversations with her.

In April 2000, 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 and Chief Leon and DeAngelis were placed on paid administrative leave by the mayor. Borunda submitted her report to the mayor, who publicly reprimanded Chief Leon on June 26, 2000. 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, 2000. On the same day, it submitted an open records request about other allegations of misconduct. Assistant Police Chief Richard Wiles initiated a separate investigation into the leak.³ Wiles assigned Lieutenant David Norman to the investigation.⁴ While the investigation was pending, Osburn was relieved of her duties with the El Paso Police Department.⁵ Although she told DeAngelis, she did not notify Martinez of her reassignment.

In July, Martinez went to see Osburn at her office to discuss what he perceived to be retaliatory actions toward him by Chief Leon as a result of his participation in Borunda's investigation. Osburn escorted Martinez to Borunda's office and sat with him while he filed a formal complaint. When Martinez asked Borunda for legal advice, she told him that she could never give City employees individual legal advice. He then expressed his concerns to Osburn and wanted to know what he needed to do. Osburn advised him to document any retaliatory actions and suggested that he classify any statements as "whistle blower" information. 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 a conversation with Martinez. Osburn did not discuss these events with anyone else in the City Attorney's office before agreeing to participate. The call was placed from City Hall and Norman orchestrated the conversation. Martinez was not aware that the conversation was being recorded. Osburn began by telling Martinez that she was working late, to lead him to believe that the purpose of the call was not social. She then told him that the City had just received an open records request from one of the television stations. The conversation turned to contact with the media concerning Borunda's investigation and Osburn's criticism of that investigation. Osburn inquired whether Martinez still wanted her to speak with a reporter. Martinez advised her that she shouldn't talk to the media unless she was willing to do so and certain that her name would not be revealed. Martinez explained that the only details he had provided to the media were general descriptions of administrative procedure, his opinion that Borunda's investigation was less than thorough,⁶ and his comment to a reporter that Osburn might be willing to talk if she remained anonymous. Osburn also took the opportunity to discuss with Martinez his employment issues, and asked whether Chief Leon was still "bothering" him. Martinez told her that Leon was scrutinizing his work and would not interact with him at all. At the end of the telephone conversation, Osburn asked to meet with Martinez and he suggested that they have lunch the next day. Norman placed a wire in Osburn's purse in order to record the luncheon conversation.⁷ Later that afternoon, Norman and Buster Collins, a Texas...