PD 0667-15

IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

_______________________________________________

KENNETH COOPER MCAFEE,

Appellant,

v.

THE STATE OF TEXAS,

Appellee.

_______________________________________________

On Petition for Discretionary Review from the 

First Court of Appeals in No. 01-13-00777-CR

 affirming the conviction in cause number 1262341,

From the 339th District Court of Harris County, Texas

_______________________________________________

APPELLANT’S PETITION FOR DISCRETIONARY REVIEW

_______________________________________________

ORAL ARGUMENT NOT REQUESTED ALEXANDER BUNIN

Chief Public Defender

Harris County, Texas

JANI MASELLI WOOD

Assistant Public Defender 

Harris County, Texas

TBN. 00791195

1201 Franklin Street, 13th Floor

Houston, Texas 77002

Phone: (713) 368-0016

Fax: (713) 368-9278

Counsel for Appellant

July 13, 2015

PD-0667-15

COURT OF CRIMINAL APPEALS

AUSTIN, TEXAS

Transmitted 7/13/2015 3:22:43 PM

Accepted 7/15/2015 3:36:03 PM

ABEL ACOSTA

CLERK
IDENTITY OF PARTIES AND COUNSEL

APPELLANT: Mr. Kenneth Cooper McAfee

TDCJ# 01879352

Polunsky Unit

3872 FM 350 South

Livingston, TX 77351

TRIAL PROSECUTOR: Ms. Donna Logan

APPELLATE PROSECUTOR: Ms. Jessica Caird

Assistant District Attorney

Harris County, Texas

1201 Franklin, 6th Floor

Houston, Texas 77002

DEFENSE COUNSEL AT TRIAL: Mr. Gerald Fry

Ms. Emily Shelton

801 Congress #350

 Houston, Texas 77002

PRESIDING JUDGE: Hon. Maria T. Jackson, Presiding Judge

339th District Court 

Harris County, Texas

1201 Franklin, 14th floor

Houston, Texas 77002

DEFENSE COUNSEL ON APPEAL: Mrs. Jani Maselli Wood

 Assistant Public Defender

Harris County, Texas

 1201 Franklin, 13th Floor

Houston, Texas 77002

-2-
TABLE OF CONTENTS

PAGE

Identity of Parties. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Table of Contents. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Index of Authorities. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

Statement Regarding Oral Argument. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Statement of the Case. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Statement of Procedural History. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Ground for Review. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

The attorney/client privilege is viewed from the perspective of the

client. The State never provided any evidence Mr. McAfee had waived

the privilege. Did the Court of Appeals err in determining that the trial

court did not abuse its discretion is admitting evidence protected by

attorney/client privilege?. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Reason for Review. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Statement of Facts.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Argument.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

1. Neither the State nor the Court of Appeals could ever point to

evidence Mr. McAfee had waived his attorney/client privileged

discussions with Mr. Storer.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

2. The privilege belonged to Mr. McAfee to waive - not his attorney

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

-3-
3. The Court of Appeals belief that because Mr. McAfee and his

attorney were friends that no privilege existed is inconsequential

to whether the privilege was actually waived.. . . . . . . . . . . . . . . . . . 11

Prayer for Relief. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

Certificate of Service. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

Certificate of Compliance. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

Appendix . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

-4-
INDEX OF AUTHORITIES

PAGE

Cases:

Carmona v. State, 

941 S.W.2d 949 (Tex. Crim. App. 1997). . . . . . . . . . . . . . . . . . . . . . . 9, 10, 11

Cruz v. State, 

586 S.W.2d 861 (Tex. Crim. App. [Panel Op.] 1979).. . . . . . . . . . . . . . 11, 12

McAfee v. State, 

01-13-00777-CR, 2015 WL 2235122 

(Tex. App.—Houston [1st Dist.] May 12, 2015, no. pet. h.) . . . . . . . . passim

Motilla v. State, 

78 S.W.3d 352 (Tex. Crim. App. 2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Sanford v. State, 

21 S.W.3d 337 (Tex. App. - El Paso 2000, no pet.). . . . . . . . . . . . . . . . . . . 10

State v. Martinez, 

116 S.W.3d 385 (Tex. App. - El Paso 2003, no pet.). . . . . . . . . . . . . . . . . . 10

Statutes and Rules:

TEX. CODE CRIM. PROC. 19.02. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

TEX. R. EVID. 503 (b)(1)(A). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

TEX. R. EVID. 503(B)(1). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

TEX. R. EVID. 503 (b)(2). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9, 10

-5-
STATEMENT REGARDING ORAL ARGUMENT

Oral argument is not requested.

STATEMENT OF THE CASE

This is an appeal from a conviction for murder. (I. C.R. at 687). TEX. CODE

CRIM. PROC. 19.02. Mr. McAfee pleaded not guilty by reason of insanity and was

found guilty by a jury. (I. R.R. at 415, 687). The judge assessed punishment at

confinement for 99 years in the Texas Department of Criminal Justice - Institutional

Division and a $10,000 fine. (C.R. at 687).

STATEMENT OF THE PROCEDURAL HISTORY

In a published opinion, the First Court of Appeals affirmed Mr. MCafee’s

conviction. McAfee v. State, 01-13-00777-CR, 2015 WL 2235122 (Tex.

App.—Houston [1st Dist.] May 12, 2015, no. pet. h.). No motion for rehearing was

filed. After an extension of time, this petition is timely if filed on or before July 13,

2015.

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GROUND FOR REVIEW

The attorney/client privilege is viewed from the perspective of the

client. The State never provided any evidence Mr. McAfee had waived

the privilege. Did the Court of Appeals err in determining that the trial

court did not abuse its discretion is admitting evidence protected by

attorney/client privilege?

REASON FOR REVIEW

The First Court of Appeals has decided an important question of state

or federal law in a way that conflicts with the applicable decisions of the

Court of Criminal Appeals or the Supreme Court of the United States.

TEX. R. APP. P. 66.3(c).

STATEMENT OF FACTS RELATIVE TO GROUND RAISED

Mr. McAfee was convicted of killing his wife; the Court of Appeals explained

his background succinctly:

In 2006, appellant began to suffer from various health problems. These

issues led to the breakup of appellant's marriage to Janet, and the two

were in the process of getting divorced. The record contains conflicting

evidence regarding the nature of appellant's physical and mental health

issues and includes testimony that appellant suffered from drug and

alcohol abuse, depression, anxiety and panic attacks, degenerative

neurological disease, and dementia. It is undisputed that at the time of

the offense appellant was living in an assisted living facility.

McAfee, 2015 WL 2235122, at *1. Mr. McAfee shot his wife and due to a panic alarm,

there was a SWAT stand off. Id., at *1-3. 

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Motion to Suppress 

The defensemoved to suppressthe statements ofCharles Storer, Mr. McAfee’s

attorney. (6 R.R. at 8). A hearing was held outside the presence of the jury. (6 R.R.

at 8). Mr. Storer stated Mr. McAfee called him on the day of the offense and stated

he had done something horrible. (6 R.R. at 9). Mr. Storer testified it was a private

conversation and that Mr. McAfee was talking to him in his capacity as an attorney. 

(6 R.R. at 9). Mr. Storer went to the scene of the offense and introduced himself to

the police as Mr. McAfee’s attorney. (6 R.R. at 9). Defense Exhibit 1 was introduced,

a police report stating that Mr. Storer arrived on the scene and introduced himself as

the attorney of Mr. McAfee. (21 R.R. at D-1; 6 R.R. at 10). 

The State focused on the fact that Mr. McAfee and Mr. Storer had been friends

for many years. (6 R.R. at 7-14). Mr. McAfee had lived with Mr. Storer and his wife

for a short time. (6 R.R. at 18-21). In the beginning of May 2012, Mr. Storer had

started representing Mr. McAfee in his divorce. (6 R.R. at 16). The State asked

whether there had been any formal discussions about representing him in criminal

matters. (6 R.R. at 17). Further, the State offered the 9-1-1 call where Mr. Storer

called the police telling them there had been a shooting, and that his friend had killed

his wife. (6 R.R. at 21). Mr. Storer also gave information to the police about what Mr.

McAfee had told him. (6 R.R. at 23). In that statement, Mr. Storer agreed with the

-8-
officer that he was not representing Mr. McAfee on a criminal case. (6 R.R. at 27).

However, Mr. Storer clarified that he was trying to find another attorney to handle the

criminal case and he was representing him. (6 R.R. at 29-30). Further, Mr. McAfee

never waived the attorney/client privilege nor gave Mr. Storer permission to speak

with anyone about the case. (6 R.R. at 30). 

After argument of counsel, the court determined there was no attorney/client

privilege. (6 R.R. at 39). 

Argument

The attorney/client privilege is viewed from the perspective of the

client. The State never provided any evidence Mr. McAfee had waived

the privilege. Did the Court of Appeals err in determining that the trial

court did not abuse its discretion is admitting evidence protected by

attorney/client privilege?

1. Neither the State nor the Court of Appeals could ever point to evidence

Mr. McAfee had waived his attorney/client privileged discussions with

Mr. Storer. 

The Court of Appeals held “[t]he record contains conflicting evidence

regarding the nature of appellant’s relationship with Storer at the time the phone calls

occurred.” McAfee, 2015 WL 2235122 at *16. Then the Court of Appeals stated that

“appellant told police that he wanted to see his attorney and that when Storer arrived

on the scene, he introduced himself as appellant’s attorney.” Id. 

-9-
2. The privilege belonged to Mr. McAfee to waive - not his attorney.

A client has a privilege to refuse to disclose and to prevent any other person

from disclosing confidential communications made for the purpose of facilitating the

rendition of professional legal services to the client; between the client or a

representative of the client, and the client's lawyer or a representative of the lawyer.

TEX. R. EVID. 503 (b)(1)(A). In criminal cases, a client has a privilege to prevent the

lawyer or lawyer's representative from disclosing any other fact which came to the

knowledge of the lawyer or the lawyer'srepresentative by reason of the attorney-client

relationship. TEX. R. EVID. 503 (b)(2).

The power to waive the attorney-client privilege belongs to the client, or his

attorney or agent both acting with the client's authority. Carmona v. State, 941 S.W.2d

949, 953 (Tex. Crim. App. 1997). This Court has explained:

the mere fact privileged materials already have been disclosed does not

establish a “presumptive” or “automatic waiver.” See Jordan v. Court of

Appeals for Fourth Supreme Judicial District, 701 S.W.2d 644, 649–51

(Tex.1985) (orig. proceeding) (Gonzalez, J., concurring and dissenting)

(mere disclosure of privileged materials does not establish an “automatic

waiver”); TEX.R.CRIM.EVID. 511 (holder of the privilege waives the

privilege if he discloses or consents to disclosure of any significant part

of privileged materials).

Carmona v. State, 941 S.W.2d 949, 953-54 (Tex. Crim. App. 1997).

A client has a privilege to refuse to disclose and to prevent any other person

from disclosing confidential communications made for the purpose of facilitating the

-10-
rendition of professional legal services to the client. TEX. R. EVID. 503(B)(1). 

503(B)(2) further provides that:

in criminal cases, a client has a privilege to prevent the lawyer or lawyer's

representative from disclosing any other fact which came to the

knowledge of the lawyer or the lawyer's representative by reason of the

attorney-client relationship.

The “[i]nvocation of the privilege is dependent upon the existence of an

attorney-client relationship, which has been defined as a contractual relationship

whereby an attorney agrees to render professional services for a client.” State v.

Martinez, 116 S.W.3d 385, 392 (Tex. App. - El Paso 2003, no pet.). The client bears

the burden of establishing the existence of the privilege. Sanford v. State, 21 S.W.3d

337, 342 (Tex. App. - El Paso 2000, no pet.), abrogated on other grounds, Motilla v.

State, 78 S.W.3d 352 (Tex. Crim. App. 2002). Mr. Storer had been representing Mr.

McAfee in his divorce. (6 R.R. at 15-16). There was an attorney/client relationship.

The “attorney-client privilege is designed for the benefit of the client by

guaranteeing to the client the confidentiality necessary to promote forthright

communications between the lawyer and the client.” Carmona, 941 S.W.2d at 953. 

Additionally "[t]he Rules of Criminal Evidence make it clear the attorney-client

privilege is held by the client, not the attorney... [a]nd only the client, or an attorney

acting with the client's consent, may waive the attorney-client privilege." Carmona, 941

S.W.2d at 956. (Baird concurring) (citations omitted). Texas law does not authorize

-11-
attorneys to unilaterally waive the attorney-client privilege for their clients; only the

client may relinquish the privilege. Id. citing Cruz v. State, 586 S.W.2d 861 (Tex. Crim.

App. [Panel Op.] 1979).

3. The Court of Appeals belief that because Mr. McAfee and his attorney

were friends that no privilege existed is inconsequential to whether the

privilege was actually waived.

The Court of Appeals discussion of the friendship of the two men is

insignificant for the analysis:

However, it was undisputed that appellant and Storer were long-time

friends, and Storer testified that he was probably appellant's closest

friend. Appellant did not call Storer's legal office; rather, he called

Storer's cell phone. Storer also acknowledged that he did not typically

practice criminal defense law.

McAfee, 2015 WL 2235122, at *16. 

Mr. McAfee referred to Charles Storer as “my attorney” while talking to the

S.W.A.T negotiator and received legal advice from Charles Storer on May 8, 2010.

Charles Storer testified that he was giving legal advice and viewed Mr. McAfee as his

friend as well. An objective analysis of these facts demonstrate Mr. McAfee thought

hewas conducting privileged communicationsto obtain legal advice from an attorney.

However it is not Mr. McAfee's burden to disprove waiver, it is the State's

burden to prove waiver. Carmona, 941 S.W.2d at 953(party seeking to benefit from a

finding of waiver has the burden to provide evidence that supports a finding of

-12-
waiver). The State failed to do so. Waiver is not to be “lightly inferred.” Cruz, 586

S.W.2d at 865. 

Mr. McAfee was harmed because the statements by Storer were used by Dr.

Moeller to somehow prove that Mr. McAfee was sane at the time of the offense. The

jury could have latched onto this privileged communications and used to justify their

decision to not find for the insanity defense. The law is clear - there was not one

shred of evidence presented that Mr. McAfee ever waived the privilege with Mr.

Storer. A review of the SWAT recording (SX 96) shows Mr. McAfee repeatedly asked

for his attorney. Mr. Storer introduced himself as Mr. McAfee’s attorney.

The Court of Appeals erred in determining that the trial court did not err in

failing to grant the motion to suppress. Review should be granted.

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PRAYER FOR RELIEF

For the reasons states above, Mr. McAfee prays that this Court grant his

petition for discretionary review.

Respectfully submitted,

ALEXANDER BUNIN

Chief Public Defender

Harris County Texas 

Jani Maselli Wood

_______________________________

JANI J. MASELLI WOOD

Assistant Public Defender 

Harris County, Texas

Jani.Maselli@pdo.hctx.net

TBN. 00791195

1201 Franklin Street, 13th Floor

Houston, Texas 77002

Phone: (713) 368-0016

Fax: (713) 368-9278

Attorney for Appellant

Kenneth Cooper McAfee

-14-
CERTIFICATE OF SERVICE

Pursuant to Tex. R. App. Proc. 9.5, this certifies that on July 13, 2015, a copy

of the foregoing was emailed to Lisa McMinn, State Prosecuting Attorney, and the

HarrisCounty District Attorney’sOffice through texfile.com at the following address:

Jessica Caird

Assistant District Attorney

1201 Franklin Street, 6th Floor

Houston, TX 77002

caird_jessica@dao.hctx.net

Lisa McMinn

Lisa.McMinn@SPA.texas.gov

Jani Maselli Wood

_________________________________

JANI J. MASELLI WOOD

-15-
CERTIFICATE OF COMPLIANCE

Pursuant to proposed Rule 9.4(i)(3), undersigned counsel certifies that this

petition complieswith the type-volume limitations of TEX.R.APP.PROC.9.4(I)(2)(D).

1. Exclusive of the portions exempted by TEX. R. APP. PROC. 9.4 (I)(1), this

petition contains 1768 words printed in a proportionally spaced typeface.

2. This petition is printed in a proportionally spaced, serif typeface using

Garamond 14 point font in text and Garamond 14 point font in footnotes produced

by Corel WordPerfect software.

3. Undersigned counsel understands that a material misrepresentation in

completing this certificate, or circumvention of the type-volume limits in Tex. R. App.

Proc. 9.4(j), may result in the Court's striking this brief and imposing sanctions against

the person who signed it.

Jani Maselli Wood

____________________________ 

 JANI J. MASELLI WOOD

-16-
Appendix A

Opinion London v. State
McAfee v. State, --- S.W.3d ---- (2015)

2015 WL 2235122

Only the Westlaw citation is currently available.

NOTICE: THIS OPINION HAS NOT BEEN RELEASED

FOR PUBLICATION IN THE PERMANENT LAW

REPORTS. UNTIL RELEASED, IT IS SUBJECT TO

REVISION OR WITHDRAWAL.

Court of Appeals of Texas, 

Houston (1st Dist.

Kenneth Cooper McAfee, Appellant

v.

The State of Texas, Appellee

NO. 01–13–00777–CR | Opinion issued May 12, 2015

Synopsis

Background: Defendant was convicted in the 339th District

Court, Harris County, of murder and he was sentenced to 99

years of imprisonment. Defendant appealed.

Holdings: The Court of Appeals, Evelyn V. Keyes, J., held

that:

[1] evidence was factually sufficiency to support finding that

defendant was aware his conduct was wrong when he

murdered his wife;

[2] the trial court's error, if any, in permitting the prosecution

to define the word “wrong” during voir dire by using a

commonly accepted definition of the term that was broader

than the definition set out by caselaw did not constitute

reversible error; and

[3] the attorney-client privilege did not apply to bar evidence

of the telephone calls defendant made to his friend, who was

also an attorney, on the night of the murder.

Affirmed.

West Headnotes (43)

 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 
McAfee v. State, --- S.W.3d ---- (2015)

[1] Criminal Law

Defenses in general

Criminal Law

Particular issues or elements

The Texas Court of Criminal Appeals has adopted

the civil standard of factual-sufficiencyreviewfor

challenges to the rejection of an affirmative

defense because the burden of proof is that of

preponderance of the evidence, the same burden

applied in civil proceedings.

Cases that cite this headnote

[2] Criminal Law

Particular issues or elements

In making a factual-sufficiency claim, the

defendant is asserting that, considering the entire

body of evidence, the jury's adverse finding on his

affirmative defense was so against the great

weight and preponderance of the evidence as to

be manifestly unjust.

Cases that cite this headnote

[3] Criminal Law

Weight of Evidence in General

Criminal Law

Province of jury or trial court

On a challenge to the sufficiency of the evidence

the Court of Appeals may not usurp the function

of the jury by substituting its judgment in place of

the jury's assessment of the weight and credibility

of the witnesses' testimony.

Cases that cite this headnote

[4] Criminal Law

Verdict unsupported by evidence or contrary

to evidence

Criminal Law

Rendition, form, and entry of judgment

The Court of Appeals may sustain a defendant's

factual-sufficiency claim only if, after setting out

the relevant evidence and explaining precisely

how the contrary evidence greatly outweighs the

evidence supporting the verdict, the Court clearly

states why the verdict is so much against the great

weight of the evidence as to be manifestly unjust,

conscience-shocking, or clearly biased.

Cases that cite this headnote

[5] Criminal Law

Particular issues or elements

Criminal Law

Ordering new trial

If the Court of Appeals determines that the

evidence supporting an affirmative defense so

greatly outweighs the State's contrary evidence

that the verdict is manifestly unjust, then the

Court of Appeals may reverse the trial court's

judgment and remand for a new trial.

Cases that cite this headnote

[6] Criminal Law

Insanity

To establish the affirmative defense of insanity,

the defendant must prove that, at the time of the

conduct charged, the actor, as a result of severe

mental disease or defect, did not know that his

conduct was wrong. Tex. Penal Code Ann. § 8.01.

Cases that cite this headnote

 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 
McAfee v. State, --- S.W.3d ---- (2015)

[7] Criminal Law

Innocence

Criminal Law

Degree of proof

The law presumes that the accused is sane, and

the accused bears the burden of proving by a

preponderance of the evidence that he is insane.

Tex. Penal Code Ann. § 8.01.

Cases that cite this headnote

[8] Criminal Law

Insanity

The insanity defense focuses on whether the

accused understood the nature of his action and

whether he knew he should not do it. Tex. Penal

Code Ann. § 8.01.

Cases that cite this headnote

[9] Criminal Law

Insanity

For the purpose of an insanity defense, if the

accused knows that his conduct is illegal by

societal standards, then he understands that his

conduct is wrong, even if, due to a mental disease

or defect, he thinks his conduct is morally

justified. Tex. Penal Code Ann. § 8.01.

Cases that cite this headnote

[10] Criminal Law

Insanity

Proof of a mental disease or defect alone is not

sufficient to establish an affirmative defense of

insanity. Tex. Penal Code Ann. § 8.01.

Cases that cite this headnote

[11] Criminal Law

Experts

Criminal Law

Insanity or Other Incapacity

Although jurors may not arbitrarily disregard

expert testimony as to insanity, neither may they

give conclusive effect to such testimony.

Cases that cite this headnote

[12] Criminal Law

Defense of insanity

Whether the defense of insanity was proved is a

decision that lies within the province of the jury,

both as to the credibility of witnesses and the

weight of the evidence and as to the limits of the

defense.

Cases that cite this headnote

[13] Homicide

Insanity

 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 
McAfee v. State, --- S.W.3d ---- (2015)

Evidence was factually sufficiency to support

finding that defendant was aware his conduct was

wrong when he murdered his wife, in support of

the jury's rejectionof defendant's insanitydefense,

during prosecution for murder, even though

several experts believed defendant's disorders

were attributable to a degenerative neurological

disorder, the State's expert witness opined that

defendant was not suffering from a degenerative

neurological disorder and that he was sane at the

time he committed the offense, defendant had a

history of drug and alcohol abuse that could have

contributed to his mental disorders, several

witnesses testified that defendant was placed in an

assisted living facility due to his drug issues and

not due to his dementia, defendant's treating

psychiatrist, testified that he treated defendant up

until the month preceding the offense and he had

never had any reason to believe that appellant

suffered from psychosis, delusions,

hallucinations, dementia, or any degenerative

neurological disorder or other physiological

reason for his mental disorders, and there was no

medical evidence indicating that defendant

suffered from anything other than severe major

depressive disorder and anxiety until after he

committed the murder, shot himself in the face,

and was incarcerated. Tex. Penal Code Ann. §

8.01.

Cases that cite this headnote

[14] Jury

Discretion of court

The trial court has broad discretion over the

process of selecting a jury.

Cases that cite this headnote

[15] Criminal Law

Selection and impaneling

The Court of Appeals will not disturb the trial

court's ruling on the propriety of a particular voir

dire question absent an abuse of discretion.

Cases that cite this headnote

[16] Jury

Examination of Juror

A voir dire question is proper if it seeks to

discover a juror's views on an issue applicable to

the case.

Cases that cite this headnote

[17] Jury

Examination of Juror

Voir dire questions that misstate the law are

improper.

Cases that cite this headnote

[18] Criminal Law

Arguments and Statements by Counsel

Generally, a prosecutor's statements during voir

dire will not constitute error unless they are

contrary to the trial court's charge.

Cases that cite this headnote

[19] Criminal Law

Custody and conduct of jury

 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 

-21-
McAfee v. State, --- S.W.3d ---- (2015)

When a term is undefined in the charge, the Court

of Appeals presumes that the jury attaches a

common understanding to the meaning of the

term.

Cases that cite this headnote

[20] Criminal Law

Impaneling jury in general

A trial court's erroneous ruling on issues relating

to questioning a venire panel about its

understanding of the burden of proof is

non-constitutional error subject to a harm

analysis. Tex. R. App. P. 44.2(b).

Cases that cite this headnote

[21] Criminal Law

Impaneling jury in general

The trial court's error, if any, in permitting the

prosecution to define the word “wrong” during

voir dire by using a commonly accepted definition

of the termthat was broader than the definition set

out by caselaw did not constitute reversible error,

during murder prosecution; the error did not have

a substantial or injurious effect or influence the

verdict against defendant.

Cases that cite this headnote

[22] Criminal Law

Reception of evidence

In reviewing a trial court's ruling on a motion to

suppress, appellate courts must viewthe evidence

in the light most favorable to the trial court's

ruling.

Cases that cite this headnote

[23] Criminal Law

Reception of evidence

Criminal Law

Evidence wrongfully obtained

When a trial court makes explicit fact findings

when ruling on a motion to suppress, the Court of

Appeals must determine whether the evidence

viewed in the light most favorable to the trial

court's ruling supports the fact findings.

Cases that cite this headnote

[24] Criminal Law

Review De Novo

Criminal Law

Evidence wrongfully obtained

The Court of Appeals reviews motions to

suppress pursuant to a bifurcated standard under

which the trial court's determinations of historical

facts and mixed questions of law and fact that rely

on credibility are granted almost total deference

when supported by the record; however, for

questions of law or mixed questions of law and

fact that do not depend on the evaluation of

credibility and demeanor, the Court reviews the

trial court's ruling de novo.

Cases that cite this headnote

[25] Criminal Law

Trial judge as sole arbiter of credibility

At a suppression hearing, the trial court is the sole

trier of fact and judge of the credibility of the

witnesses and the weight to be given their

testimony.

Cases that cite this headnote

[26] Criminal Law

Credibility of witnesses in general

 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 
McAfee v. State, --- S.W.3d ---- (2015)

The trial court may choose to believe or

disbelieve any part or all of a witness's testimony.

Cases that cite this headnote

[27] Criminal Law

Illegally obtained evidence

Criminal Law

Evidence wrongfully obtained

The Court of Appeals sustains the trial court's

ruling on a motion to suppress if it is reasonably

supported by the record and correct on any theory

of law applicable to the case.

Cases that cite this headnote

[28] Privileged Communications and Confidentiality

Elements in general; definition

The scope of the attorney-client privilege as set

out in the rules of evidence is limited to

communications made by a client seeking legal

advice from a lawyer in her capacity as such and

the communication must relate to the purpose for

which the advice is sought. Tex. R. Evid.

503(b)(1).

Cases that cite this headnote

[29] Privileged Communications and Confidentiality

Definition of ‘privilege‘

In general, privileges are exclusionary rules of

evidence that may be used to suppress relevant

evidence.

Cases that cite this headnote

[30] Privileged Communications and Confidentiality

Waiver of privilege

The client can waive the attorney-client privilege

by voluntarily disclosing or consenting to the

disclosure of a significant part of the privileged

matter. Tex. R. Evid. 503(a), 511(1).

Cases that cite this headnote

[31] Privileged Communications and Confidentiality

Presumptions and burden of proof

A party asserting a privilege has the burden of

showing that the privilege applies.

Cases that cite this headnote

[32] Privileged Communications and Confidentiality

Presumptions and burden of proof

Once the privilege has been established, the party

seeking to establish waiver of the privilege has the

burden of going forward with evidence that

supports a finding of waiver.

Cases that cite this headnote

[33] Privileged Communications and Confidentiality

Waiver of privilege

Waiver of a privilege may be inferred from the

totality of the circumstances and reasonable

inferences.

Cases that cite this headnote

[34] Privileged Communications and Confidentiality

Waiver of privilege

 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 
McAfee v. State, --- S.W.3d ---- (2015)

The disclosure of the privileged material by

defense counsel is relevant in determining waiver

of the attorney-client privilege. Tex. R. Evid. 503.

Cases that cite this headnote

[35] Privileged Communications and Confidentiality

Presumptions and burden of proof

After the State has gone forward with evidence

supportingwaiver of the attorney-client privilege,

the party claiming the privilege may find it wise

to present evidence of no waiver. Tex. R. Evid.

503.

Cases that cite this headnote

[36] Criminal Law

Privilege

The Court of Appeals reviews the trial court's

decision on the applicability of a privilege for an

abuse of discretion.

Cases that cite this headnote

[37] Criminal Law

Witnesses

Criminal Law

Reception of evidence

The Court of Appeals can reverse a decision

concerning waiver of the attorney-client privilege

only if the trial court applied an erroneous legal

standard, or when no reasonable view of the

record could support the trial court's conclusion

under the correct law and the facts viewed in the

light most favorable to its legal conclusion. Tex.

R. Evid. 503.

Cases that cite this headnote

[38] Privileged Communications and Confidentiality

Relation of Attorney and Client

Privileged Communications and Confidentiality

Particular cases

The attorney-client privilege did not apply to bar

evidence of the telephone calls defendant made to

his friend, who was also an attorney, on the night

of the murder, during murder prosecution;

defendant and attorney were long-time friends,

defendant called attorney's cellular telephone, not

hislegal office, attorneygenerally did not practice

criminal law, attorney had never previously

represented defendant in a criminal matter, and

the communications were not made to facilitate

legal services. Tex.R. Evid. 503(a)(5), (b)(1).

Cases that cite this headnote

[39] Constitutional Law

Presumptions and Construction as to

Constitutionality

Constitutional Law

Intent of and Considerations Influencing

Legislature

In addressinga constitutional challenge, the Court

of Appeals must begin with the presumption that

the statute is valid and that the Legislature did not

act arbitrarily or unreasonably in enacting it.

Cases that cite this headnote

[40] Constitutional Law

Burden of Proof

The party challenging the statute has the burden

to establish its unconstitutionality.

Cases that cite this headnote

[41] Constitutional Law

Facial invalidity

 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 
To prevail on a facial challenge, a party must

establish that the statute always operates

unconstitutionally in all possible circumstances.

Cases that cite this headnote

[42] Constitutional Law

Encroachment in general

The Texas Constitution's separation of powers

provision ensures that power granted one branch

may be exercised by only that branch, to the

exclusion of others, and therefore requires that

any attempt by one department of government to

interfere with the powers of another is null and

void. Tex. Const. art. 2, § 1.

Cases that cite this headnote

[43] Constitutional Law

Sentencing and punishment

Constitutional Law

Criminal Law

Costs

Constitutional and statutory provisions

The statutory scheme for collection of the crime

stoppers fee did not improperly delegate a power

to the judicial branch that was more appropriately

attached to the executive branch, as argued by

defendant; funds collected for the crime stoppers

assistance fund were sufficiently related to the

collection of evidence in criminal cases to

constitute legitimate criminal justice activities.

Tex. Loc. Gov't Code Ann. §§ 133.102(a)(1),

(e)(2), 414.001(2); Tex. Crim. Proc. Code Ann.

art. 102.013.

1 Cases that cite this headnote

On Appeal from the 339th District Court, Harris County,

Texas, Trial Court Case No. 1262341

Attorneys and Law Firms

Jessica A. Caird, Devon Anderson and Alan Curry, for The

State of Texas.

Jani Maselli Wood, for Kenneth Cooper McAfee.

Panel consists of Justices Keyes, Higley, and Brown.

OPINION

Evelyn V. Keyes, Justice

*1 A jury convicted appellant, Kenneth Cooper McAfee, of

the murder of his wife, Janet McAfee, and the trial court

assessed his punishment at confinement for ninety-nine years

and a $10,000 fine.1In four issues, appellant argues that (1)

the jury erred in rejecting his insanity defense because a

preponderance of the evidence supported it; (2) the trial court

erred in overruling his objection to the State's definition of

“wrong” in the context of discussing the insanity defense

during voir dire; (3) the trial court erred in denying his motion

to suppress the testimony of Charles Storer, an attorney and

friend whomhe called in the course of committing the offense;

and (4) the consolidated court costs were unconstitutional

because they included a crime stoppers fee that does not fund

any costs of the court's function.

We affirm.

Background

Appellant and the complainant, Janet McAfee, married in

1991. In 2006, appellant began to suffer from various health

problems. These issues led to the breakup of appellant's

marriage to Janet, and the two were in the process of getting

divorced. The record contains conflicting evidence regarding

the nature of appellant's physical and mental health issues and

includes testimony that appellant suffered from drug and

alcohol abuse, depression, anxiety and panic attacks,

degenerative neurological disease, and dementia. It is

undisputed that at the time of the offense appellant was living

in an assisted living facility.

A. The Commission of the Offense

On May 8, 2010, Janet picked appellant up to attend the Art

Car Parade, and the two spent the day together viewing the

parade and later returning to the home they had shared and

where Janet still lived. That evening, a panic alarm in the

home was activated, and Houston Police Officer R.

Nellippallil was dispatched to the home to investigate. He was

met by appellant, who told Officer Nellippallil that everything

was fine and it was a false alarm. Officer Nellippallil testified

that appellant, whom he believed to be the homeowner,

appeared normal and understood his questions. Officer

Nellippallil left the home believing nothing was wrong.
McAfee v. State, --- S.W.3d ---- (2015)

Janet's alarm company also contacted the police regarding the

alarm, and a second officer, Officer B. Scott, was dispatched

to the home later that evening. As he approached the house, he

met one of Janet's neighbors who expressed her concern for

Janet, stating that she had also received an alarm call

regarding the house. Officer Scott asked the neighbor to call

Janet, and he rang the door bell. Appellant eventually

answered the door and again told Officer Scott that everything

was fine and it was a false alarm. As Officer Scott returned to

his vehicle, Janet's neighbor stopped him and explained that

she knew Janet and appellant were having marital issues and

she was concerned for Janet's safety.

Officer Scott then returned to the door and asked to speak with

Janet directly. Appellant showed his driver's license to the

officer and claimed that Janet was sleeping and could not

come to the door. When Officer Scott insisted on seeing Janet,

appellant refused to wake her and refused to allow the officer

inside to check on her. Appellant asked if Officer Scott had a

search warrant requiring him to give the officer access to the

home. As Officer Scott was having this discussion with

appellant, he saw Janet come into view from around the

comer, and he sawthat she was staggering. Officer Scott asked

her if she was okay, and she told him that she was not and fell

to the floor. At that point, appellant immediately shut the door

in Officer Scott's face and locked it. Officer Scott did not see

any blood or obvious wounds on Janet at that time, but he

informed dispatch of the situation and requested that Officer

Nellippallil return to provide backup so that they could

investigate further.

*2 While Officer Scott was discussing the situation with

dispatch, he observed appellant leave the house with his dog.

Officer Scott approached appellant, questioning him about

Janet's condition and asking why he shut the door so abmptly.

Appellant told him that Janet had been drinking and was

feeling sick as a result. Officer Scott believed that appellant

initially had planned to leave the home, because he was

carrying keys to the vehicle and tried to start the engine, but

after Officer Scott approached him, appellant put the dog in

the car and then went back inside the house.

Officer Scott testified that appellant seemed normal and spoke

to him calmly, trying to convince him that everything was

okay and that he could leave. However, Officer Scott remained

concerned about Janet's safety and waited outside the house

for backup to arrive. When Officer Nellippallil arrived, they

once again rang the door bell. Appellant did not answer the

door. However, one of the officers spoke to appellant by

phone while the other walked around the outside of the house

and was able to see of Janet through a bedroom window. He

saw that she was lying on her side, unmoving, and the officer

observed blood stains. Appellant continued to insist that Janet

was fine and that she was just sleeping, and he refused to

allow the police to enter. At one point, appellant also told the

officers that he wanted to kill himself, but Officer Scott

testified that he seemed calm, even while making his suicide

threat.

Eventually, the police dispatched a SWAT team and a Crisis

Intervention Response Team (“CIRT”) to the home. Michael

Hawkins, a clinician with the CIRT, attempted to

communicate with appellant. Hawkins testified that his

training and experience as a licensed professional counselor

and his crisis intervention training equipped him to recognize

people suffering from psychosis, hallucinations, and other

acute mental illness. He stated that when he arrived on the

scene, he spoke with appellant over the phone and attempted

to get appellant to exit the house. Hawkins testified that while

he was speaking with appellant, he noticed that appellant

seemed sad and depressed. In fact, appellant told Hawkins that

he was depressed, and Hawkins understood from his

discussion with appellant that the problems had something to

do with money. However, Hawkins did not observe anyspeech

or behavior that indicated that appellant was suffering from

psychosis or hallucinations. Rather, appellant was

communicating clearly and his thoughts and words seemed to

be “in order” and made sense in context.

Hawkins also testified that, while he was on the phone with

appellant, appellant asked to speak with his attorney.

Appellant initially indicated that he would come out of the

home after his attorney arrived, and appellant later stated that

he would hurt himself if the police entered the home.

Appellant's attorney, Charles Storer, arrived on the scene at

some point and spoke to appellant on the phone.

While Hawkins was talking with appellant, the SWAT team

arrived and Officer M. Scales used a magnification scope to

look into the bedroom where Janet was lying on the bed.

Officer Scales did not observe any signs of life from Janet, but

he saw appellant come into the room and lie down next to his

wife. He saw appellant raise one of Janet's legs and let it fall

back onto the bed, and Officer Scales stated that appellant

appeared resigned at that point. As the other members of the

SWAT team entered the home, Officer Scales saw appellant

shoot himself in the head. Appellant was taken to a local

hospital for treatment of his gunshot wound, but Janet was

declared dead at the scene. An autopsy later revealed that she

had been shot four times, and physical evidence in the house

indicated that she had been shot somewhere outside the

bedroom, had at one point been walking around after being

 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 
McAfee v. State, --- S.W.3d ---- (2015)

shot, and had been dragged through the kitchen and into the

hallway. Detectives also discovered bloody towels in a clothes

hamper concealed by the shower curtain.

*3 Houston Police Officer T. Moore was assigned to guard

appellant while he was at the hospital, and he testified that he

heard a nurse ask appellant why he was in the hospital.

Appellant told the nurse he was there because he shot his wife.

An HPD homicide investigator likewise visited the hospital to

get appellant's statement. Appellant asked himhowmuch time

he could get for murder and then decided to wait to give a

statement until his attorney was present. As part of the

investigation, the officer requested to view appellant's mail

while he was confined in the Harris County Jail. A few days

after appellant arrived at the jail, he sent a letter to his ex-wife,

Brenda McAfee, in which he wrote, “I'd say that insanity will

be an interesting angle in the trial.”

Appellant was tried for Janet's murder, and he asserted the

affirmative defense of insanity.

B. Facts Relevant to Voir Dire

During its voir dire examination of the venire, the State

explained the elements of the affirmative defense of insanity

in an attempt to ascertain whether the potential jurors would

properly apply the law. The prosecutor explained that there

were essentially three prongs to the insanity defense and stated

that a defendant asserting the insanity defense would be

required to establish that he was suffering from a severe

mental disease or defect and that there was a causal connection

between the mental illness and the crime. Finally, the

prosecutor stated, “Third prong[:] Did the defendant knowthat

his conduct was wrong? Wrong is defined as legally, socially

ormorallyimpermissible.” Appellant objected, stating, “There

is no legal definition for wrong, and I object to her inserting

her definition. Because since there is no legal definition, then

it's up to the jury.” The State replied that it used the definition

“from case law.” Appellant argued, “It's not in the statute

law.” The trial court overruled the objection.2

C. Facts Relevant to Appellant's Insanity Defense

A significant portion of the trial involved evidence relevant to

appellant's mental state before, during, and after the offense

and the validity of his insanity defense. Appellant's former

supervisor, Paul Steets, testified that appellant had worked at

a brokerage firm until September 2006, when he had a panic

attack while at work. Following that incident, appellant was

unable to focus and could not complete his work, so he went

on medical leave. Steets testified that appellant needed to

complete some continuing education courses to return to work

following his medical leave, but he was unable to pass the

required tests and never returned to active employment. Steets

was not aware of any problems between appellant and Janet,

and he was not aware that appellant had ever demonstrated

any anger or violence issues prior to 2006.

Janet's mother, Rosemary Foltyn, testified regarding

appellant's relationship with Janet. She stated that theymarried

in 1991. In 2006, appellant had a breakdown involving a panic

attack at work and subsequent treatment for depression, which

Foltyn was aware had caused Janet and appellant's marriage to

suffer. Foltyn also testified that appellant had a history of

alcohol and drug abuse. She recalled an incident in 2009 when

she visited Janet and they returned from an outing to find

appellant passed out and naked in the hallway, incapacitated

due to alcohol and drug use. Foltyn also recounted an incident

in May 2009 when she became concerned for appellant's

safety while Janet was out of the country. When she called

him, he sounded intoxicated, so she called a neighbor to check

on him, and he was subsequently taken to the hospital for an

“overdose situation.”

*4 Foltyn believed that Janet had given appellant an ultimatum

to “choose between the booze, drugs, your alcohol, or I'm

leaving.” Instead, appellant entered the assisted living facility

because “someone had to take care of him; and [Janet] would

not bring him home.” Foltyn testified that this was because of

appellant's drug use and Janet's concern that he “would be

doing the same old thing.”

Janet and appellant's neighbor, Betty McCagnan, likewise

testified about the overdose incident. She testified that Foltyn

called her and asked her to go check on appellant. When

McCagnan arrived at appellant's home, she discovered him in

the living room looking “extremely pale” with “some bruising

along his legs.” She understood that appellant had “[t]aken a

lot of pills,” so she called an ambulance, and appellant was

taken to the hospital. McCagnan also testified that Janet had

given appellant an ultimatum because she wanted him “to

clean it up, get on with it, and she wasn't going to be around to

watch him destroy himself.” McCagnan testified that Janet

eventually filed for divorce and that appellant went to live in

an assisted living facility because Janet wanted “to protect

him” and “didn't want himto have access to the internet so that

he could order prescription drugs, or whatever drugs, whatever

he was ordering.”

McCagnan testified that appellant left the first assisted living

facility, lived somewhere else for a time, and eventually

moved into another assisted living facility. She recalled that

 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 
McAfee v. State, --- S.W.3d ---- (2015)

there were occasions during thistime when Janet did not know

where appellant was, and Janet was afraid that appellant might

hurt her. McCagnan stated that Janet sent a letter to her and

other neighbors at one point informing them that a friend had

helped appellant escape from the “supervised facility” where

he had been staying and that she did not know where he was.

Janet's letter stated that she was afraid because appellant had

threatened to kill her before, and she had a letter from his

psychiatrist explaining that he was a danger to himself and

others. Janet informed her neighbors that she had installed an

alarm system and new locks and asked that they call the police

if they saw anyone at the house while she was out of the

country.

Appellant's friend, Charles Storer, testified regarding his

relationship with appellant. Storer testified that he had known

appellant for about twenty-five years and that their relationship

had begun as a friendship. Storer described himself as

“probably [appellant's] closest friend.” Storer maintained a

friendship with appellant in which they would visit socially,

attending special events or going out to eat as often as twice a

week. However, following appellant's breakdown at work in

2006, Storer noticed a change in appellant and did not see him

as often socially. He testified that appellant's personality

underwent a drastic change— appellant went from an

outgoing, positive person to a withdrawn and

uncommunicative person almost overnight.

After 2006, Storer tried to maintain contact with appellant but

only saw him once or twice a month. Storer testified that he

visited appellant in the assisted living facility and that, at one

point, appellant called him to come remove him from the

facility. Storer had concerns about the first assisted living

facility where appellant lived, in part because of the strict

regulations in place there and because of the other kinds of

people living there. Appellant told Storer that he did not like

the facility and asked Storer to pick him up. Storer brought

appellant home with him and allowed appellant to live with

him and his wife for a few weeks. However, this arrangement

ended when appellant overdosed and had to be taken back to

the hospital.

*5 Storertestified that he was representing appellant pro bono,

without a formal, written agreement, in his divorce from Janet

at the time of the murder and that he had “reservations” about

the way Janet was treating appellant with regard to the

divorce. He believed that Janet was trying to take advantage

of appellant and that, although Janet had tried to help

appellant for a while, she had essentially abandoned him.

However, Storer had never heard appellant say anything

disparaging about Janet. Four days before the murder, Storer

filed a counterpetition on appellant's behalf in the divorce

proceeding.

Amaldo Mariano, the assistant director of appellant's assisted

living facility, testified that hisfacility assisted its residents in

their daily living by providing meals, housekeeping, and

medication management. The facility was not a treatment

facility or a “lockup” facility, so it was not an appropriate

place for someone suffering from dementia or cognitive

disorders. He recalled that, at the time appellant was admitted,

appellant indicated that he suffered from depression. Mariano

did not recall appellant claiming that he suffered from

dementia. Mariano testified that appellant told him about

various aspects of his relationship with Janet, including

appellant's statement that she had threatened to report his drug

usage to his employer and his statements that she had made

various other threats against him. Mariano testified that

appellant fed, dressed, and groomed himself without

assistance, that he acted alert and did not display any cognitive

issues, and that appellant seemed to function fine while he was

in the facility. Mariano also agreed that the nature of the

facility necessarily limited appellant's access to prescription

drugs and alcohol.

Appellant's treating psychiatrist, Dr. Scott Sprabery, testified

that he treated appellant from September 2007 until April

2010, approximately one month before the murder. Dr.

Sprabery testified that his main practice involved prescribing

medication and medication management. In September 2007,

when he first saw appellant, appellant was taking an

antidepressant, two anti-anxietymedications, an antipsychotic,

a stimulant, and a sleep aid, and he was undergoing

electroconvulsive therapy for depression. Dr. Sprabery

testified that appellant presented with symptoms ofdepression,

anxiety, poor energy, and “continuing crying spells.” He

testified that, at the time he first saw him, appellant had been

out of work for almost a year due to his worsening depression

and had had two hospitalizations from which he was still

trying to recover.

Dr. Sprabery testified that while appellant was hospitalized

prior to coming into his care appellant exhibited “psychotic

features,” such as delusions that there was something wrong

with his body or believing that he had been poisoned. After

completing his own evaluation of appellant, Dr. Sprabery

diagnosed appellant as having “major depressive disorder,

recurrent, severe” and also determined that appellant had a

panic disorder. Dr.Sprabery subsequentlymodified appellant's

medications multiple times and took appellant off of his

antipsychotic medication prior to appellant's removal to an

assisted living facility.

 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 
McAfee v. State, --- S.W.3d ---- (2015)

Dr. Sprabery also testified that appellant's hospital records

indicated that he had a long-term stimulant addiction over

approximately twenty years of his adult life and that he had

concerns about prescribing stimulants for someone with

appellant's history. He stated that appellant never presented

with or complained of any psychosis or delusions while under

his care. Dr. Sprabery also testified that appellant never

informed him that he had any addiction to alcohol. If Dr.

Sprabery had suspected alcohol abuse, he would have been

very concerned because the combined effects of alcohol with

some of the medications appellant was taking could have been

very dangerous. Dr. Sprabery acknowledged that long-term

use of methamphetamines and alcohol can cause depression,

and he also stated that amphetamine use can cause memory

deficits and change brain chemicals when used for extensive

periods of time, as appellant had done over the course of

twenty years.

*6 Dr. Sprabery's last appointment with appellant occurred

less than a month before the murder. Appellant complained of

persistent depression and sleep difficulties. Appellant did not

demonstrate or complain ofpsychotic behavior, hallucinations,

or delusions.

Dr. Jamal Rafique, the staff psychiatrist for the Harris County

Jail, testified regarding the jail's records of appellant's mental

health. When appellant first arrived in the jail in 2010 after

Janet's murder, he underwent an initial assessment. Appellant

did not report any delusions or hallucinations. In May 2010,

a psychologist working with the mental health unit of the jail

diagnosed appellant with major depressive disorder without

psychosis. Appellant's health records also demonstrated that he

had a traumatic brain injury as a result of the self-inflicted

gunshot wound at the time of the murder.

Appellant's first “psychiatric incident” occurred in January

2011, after he had been incarcerated for approximately eight

months. Appellant experienced delusions that people were

chasing him. At that time, appellant was referred to the mental

health unit for closer monitoring and mental health treatment.

When Dr. Rafique first met with appellant in January 2011, he

diagnosed appellant as having dementia and also believed he

might have a psychotic illness. Dr. Rafique was not able to

confirm his “working diagnosis” of dementia with possible

psychosis because he never met with appellant again.

Dr. Richard Pollock, a neuropsychologist who was hired by

the defense and worked closely with appellant's expert

psychiatrist, evaluated appellant on June 16, 2010. He

diagnosed appellant with a cognitive disorder and severe

major depression that manifested itself with “psychotic

features.” Dr.Pollock explained that thismeant that appellant's

disorder was accompanied by a break with reality and an

inability to judge or analyze real world events properly. Dr.

Pollock also determined that appellant suffered from a

neurological disease of the brain and central nervous system

and that he suffered from dementia as well. Dr. Pollock

testified that appellant's disorders were aggravated by stress

and that exposure to severe stress could cause him to develop

psychotic behavior. Dr. Pollock acknowledged that his opinion

that appellant suffered froma vascular neurocognitive disorder

conflicted with the opinion of appellant's treating psychiatrist,

who had found no neurological reasons for appellant's

depression, despite reviewing the same MRI scans on which

his own opinion was based.

Dr. David Axelrad testified as appellant's expert psychiatrist

at trial. He reviewed extensive documentation regarding

appellant's health and the reports of other doctors who had

treated appellant, and he spent several hours meeting with

appellant. His first meeting with appellant occurred on June 7,

2010, and he also met with appellant on April 6, 2011,

February 29, 2012, and May 1, 2012. Dr. Axelrad prepared a

lengthy report expressing his finding that, on the night of the

offense, appellant suffered from “major depressive disorder,

severe, with psychotic and melancholy features” and a “major

vascular neurocognitive disorder with significant behavioral

disturbance.”

Dr. Axelrad testified that appellant suffered from a psychotic

episode on the night he committed the offense, which mean

that appellant could not know what was true or not true and

would not know right from wrong. Dr. Axelrad opined that

appellant did not know right from wrong when he shot his

wife. He testified that it was possible for appellant to

demonstrate clarity of thought and realize his acts were wrong

after the psychotic episode was over.

*7 Dr. Mark Moeller testified as the State's expert psychiatrist.

Dr. Moeller met with appellant on two occasions and spent

about four hours reviewing appellant's medical records. He

testified that there was no causal connection between

appellant's disorders and the murder. Dr. Moeller likewise did

not believe that appellant was suffering from dementia and did

not agree with appellant's neurologist and neuropsychiatrist

that appellant was suffering from a major neurovascular

disorder; rather, after viewing appellant's MRIs and other

records, he believed the amount of degeneration shown in the

brain was normal.

 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 
McAfee v. State, --- S.W.3d ---- (2015)

Dr. Axelrad testified regarding the shortcomings in Dr.

Moeller's expert report and opinion testimony. He stated that

Dr. Moeller's opinion did not “address the substantive deficits

in [appellant's] cognitive abilities that were identified by the

two latest neuropsychologists who evaluated” appellant and

who were experts in their field.

D. Facts Relevant to Admission of Storer's Phone

Conversations with Appellant on the Evening of the Murder

The State called Charles Storer, appellant's friend and divorce

attorney, during its case-in-chief. However, appellant moved

to suppress Storer's testimony based on an assertion of

attorney-client privilege, and the trial court held a hearing to

determine whether appellant's statements to Storer were

covered by the privilege.

At the suppression hearing, Storer testified that appellant

called himon the evening that he murdered Janet and admitted

that he had “done something horrible” and that he had killed

his wife. Storerstated that the phone conversation was private,

that appellant was talking to him as his attorney, that he gave

appellant legal advice, and that when he arrived at the scene

later in the evening, he introduced himself to the police as

appellant's attorney. Storer further testified that appellant had

not waived his attorney-client privilege.

On cross-examination, the State established that Storer had

been an attorney for approximately thirty years and that his

main practice areas were family law, probate, and personal

bankruptcy. Several years after he met appellant, Storer

represented appellant in his divorce from his first wife. After

that time, Storer maintained a personal, social relationship

with appellant. Storer also considered Janet a friend.

Janet filed for divorce in March 2010, and Storer began to

represent appellant in the divorce proceeding on May 4, 2010,

approximately four days before the murder. Storer stated that

he and appellant had a verbal attorney-client agreement, and

he admitted that he had never agreed to represent appellant in

any criminal matters and that he was not a criminal-defense

attorney.

Storer testified that on the night of May 8, 2010, when

appellant called to tell him that he had shot Janet, he

immediately called 9–1–1 and reported that appellant, whom

he described in the 9–1–1 call as a friend, had just shot his

wife. Storer then drove to the house where appellant had shot

Janet and made a statement to a police officer at the scene.

Regarding the specific legal advice that he gave appellant on

the phone that night, Storer testified that appellant told him

that “they were going to execute him for what he had done to

his wife,” and Storer told him that it was not a capital crime

and “they're not going to try to kill you over it.” Storer

acknowledged that he would have given the same advice to a

client or a friend.

Storer also acknowledged that he informed the police that he

never represented appellant as his criminal lawyer. According

to the statement that Storer made to the police, the majority of

his conversation with appellant involved appellant's

representations that he was going to kill himself and Storer's

attempts to talk him out of committing suicide. Storer

acknowledged that when he gave his statement to the police

regarding his conversations with appellant, it never occurred

to him to assert the attorney-client privilege on appellant's

behalf. However, the evidence also demonstrated that the

police were aware that Storer had acted as appellant's attorney

in his divorce proceedings, and appellant repeatedly told the

SWAT officers that he wanted to talk to his attorney and that

he would not come out of the house until his attorney arrived.

Storer further testified that he had helped facilitate appellant's

hiring of a criminal defense attorney, and he had maintained

a friendship with appellant while he was incarcerated in the

Harris County Jail.

*8 At the suppression hearing, appellant argued that Storer's

testimony regarding his conversations with appellant on the

evening of the murder was inadmissible because the

conversations were protected by the attorney-client privilege.

Appellant argued that, although he eventually hired

criminal-defense counsel, at the time of the offense he did not

have any other counsel—Storer was the only attorney he had.

The State argued that the purpose of the privilege was to

protect attorney-client communications pertaining to legal

representation and that it would be an abuse of the privilege to

protect a defendant's inculpatory statements solely on the basis

that they were made to a friend who also happened to be an

attorney. The State argued that there was no on-going

attorney-client relationship between Storer and appellant atthe

time of the communications, that Storer never represented

appellant in this or any other criminal matter, and that

appellant called Storer because Storer was his best friend, not

because he was a lawyer.

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The trial court ruled that the attorney-client privilege did not

exist and denied appellant's motion to suppress.

Storer testified before the jury regarding his twenty-five year

friendship with appellant, just as he had in the suppression

hearing. Regarding the night of the murder, Storer testified

that he had “[m]aybe six or eight” phone conversations with

appellant. He stated that he left the scene of the murder around

midnight and that he visited the police station the next day to

give a statement regarding what he knew about the murder.

Following the testimony of numerous other witnesses, during

the rebuttal phase of trial, the State offered the recording of

the 9–1–1 call Storer made and again called him to the stand.

Appellant renewed his objection to the admission of Storer's

testimony, which the trial court noted for the record.

Storer testified that he called 9–1–1 “almost immediately”

after hisfirst phone conversation with appellant on the evening

of the murder and then he went to the scene. He recalled that

appellant told himthat “that something horrible has happened,

that he had just shot Janet.” Storer recalled that appellant had

“snapped,” that appellant believed he was in trouble, and that

appellant wanted to commit suicide. Storer and appellant

discussed where appellant wanted to be buried, and appellant

asked himto look after hisson. Storer also recalled appellant's

telling him that he believed hislife was over and that either he

was going to spend the rest of his life in jail for killing Janet

or that he would be executed.

E. The Jury's Verdict and the Trial Court's Judgment

The jury rejected appellant's affirmative defense and found

him guilty of murder. The trial court assessed his punishment

at ninety-nine years' confinement and assessed a $10,000 fine.

The trial court also assessed the statutorily required $133 in

consolidated court costs.

Insanity Defense

In his first issue, appellant challenges the factual sufficiency

of the jury's rejection of his insanity defense. Stated another

way, appellant argues that he offered so much evidence in

support of his insanity defense and the State offered so little

evidence rebutting his defense that the jury's rejection of his

affirmative defense was against the great weight and

preponderance of the evidence. See Matlock v. State, 392

S.W.3d 662, 670 n. 29 (Tex.Crim.App.2013) (“Technically,

a defendant's claim is not one of ‘factual sufficiency.’ ... The

defendant is claiming that his evidence is more than sufficient

to support his affirmative defense, while the State's evidence

is insufficient to rebut it.”).

A. Standard of Review

[1] [2]The Texas Court of Criminal Appeals has adopted the

civil standard of factual-sufficiency review for challenges to

the rejection of an affirmative defense because the burden of

proof is that of “preponderance of the evidence,” the same

burden applied in civil proceedings. Id. at 671 (citing Meraz

v. State, 785 S.W.2d 146, 149, 153–55 (Tex.Crim.App.1990)).

In making a factual-sufficiency claim, the defendant is

asserting that, considering the entire body of evidence, the

jury's adverse finding on his affirmative defense was so

“against the great weight and preponderance” of the evidence

as to be manifestly unjust. Id.

*9 [3] [4] [5]Accordingly, we must view the entirety of the

evidence in a neutral light. Id. However, we “may not usurp

the function of the jury by substituting [our] judgment in place

of the jury's assessment of the weight and credibility of the

witnesses' testimony.” Id. We may “sustain a defendant's

factual-sufficiency claim only if, after setting out the relevant

evidence and explaining precisely how the contrary evidence

greatly outweighs the evidence supporting the verdict, [we]

clearly state[ ] why the verdict is so much against the great

weight of the evidence as to be manifestly unjust,

conscience-shocking, or clearly biased.” Id. If we determine

that the evidence supporting an affirmative defense so greatly

outweighs the State's contrary evidence that the verdict is

manifestly unjust, then we may reverse the trial court's

judgment and remand for a new trial. Id. at 672.

[6][7]Insanity is an affirmative defense, whichmust be proved

by a preponderance of the evidence. Tex. Penal Code Ann. §§

2.04, 8.01 (Vernon 2011). To establish the affirmative defense

of insanity, the defendant must prove “that, at the time of the

conduct charged, the actor, as a result of severe mental disease

or defect, did not know that his conduct was wrong.” Id. §

8.01(a). The law presumes that the accused is sane, and the

accused bears the burden of proving by a preponderance of the

evidence that he is insane. Martinez v. State, 867 S.W.2d 30,

33 (Tex.Crim.App.1993); seeRuffin v. State, 270 S.W.3d 586,

591–92 (Tex.Crim.App.2008) (“Texas law ... presumes that a

criminal defendant is sane and that he intends the natural

consequences of his acts.”).

[8] [9] [10]The insanity defense focuses on whether the

accused understood the nature of his action and whether he

knew he should not do it. Ruffin, 270 S.W.3d at 592; Bigby v.

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State, 892 S.W.2d 864, 877–78 (Tex.Crim.App.1994). In the

context of the insanity defense, the word “wrong” means

illegal. Ruffin, 270 S.W.3d at 592. If the accused knows that

his conduct is “illegal” by societal standards, then he

understands that his conduct is wrong, even if, due to a mental

disease or defect, he thinks his conduct is morally justified.

See id. Thus, proof of a mental disease or defect alone is not

sufficient to establish an affirmative defense ofinsanity. Nutter

v. State, 93 S.W.3d 130, 132 (Tex.App.–Houston [14th Dist.]

2001, no pet.); see Bigby, 892 S.W.2d at 877–78 (“The issue

of insanity is not strictly medical. It also involves both legal

and ethical considerations.”).

[11]Although jurors may not arbitrarily disregard expert

testimony as to insanity, neither may they give conclusive

effect to such testimony. Graham v. State, 566 S.W.2d 941,

950–51 (Tex.Crim.App.1978) (“Opinion testimony does not

establish material facts as a matter of law.”). The

circumstances of the crime itself are also important in

determining the mental state of the accused at the time of the

commission ofthe offense, and evidence indicating knowledge

of wrongful conduct, such as an attempt to conceal

incriminating evidence or elude law enforcement, may be

considered.Id. at 951; see also Torres v. State, 976 S.W.2d

345, 347–48 (Tex.App.–Corpus Christi 1998, no pet.)

(holding that, in reaching its decision on insanity, jury may

consider circumstantial evidence, including defendant's

demeanor before and after committing crime, defendant's

attempts to evade police or conceal incriminating evidence,

defendant's expressions of regret or fear of consequences of

his actions, and anyother possible explanations for defendant's

behavior).

[12]Whether the defense of insanity was proved is a decision

that lies within the province of the jury, both as to the

credibility of witnesses and the weight of the evidence and as

to the limits of the defense. Bigby, 892 S.W.2d at 878; see

also Reyna v. State, 116 S.W.3d 362, 367 (Tex.App.–El Paso

2003, no pet.) (“The issue of insanity at the time of the offense

lies within the province of the jury, and we will overturn its

decision only where insanity is undisputed or resolved to one

end of the spectrum outside the realm of discretion.”).

B. Analysis

*10 [13]Here, appellant argues that the great weight and

preponderance of the evidence presented at trial supports his

claim of insanity, and, therefore, the jury erred in rejecting his

affirmative defense. Appellant argues that the State's expert

witness, Dr. Moeller, did not conduct a thorough investigation

and “only reiterated the facts of the offense in determining

[appellant] was sane at the time of the offense.” He points to

the inadequacies of Dr. Moeller's report and expert testimony

in comparison to the testimony and report of his own expert,

Dr. Axelrad, who conducted a thorough evaluation of

appellant and his medical records and determined that

appellant did not know right from wrong at the time of the

offense. Appellant also relies on evidence indicating that he

had no prior criminal history, and he argues that it was not

until he became ill and his brain degenerated that he and Janet

began to have marital difficulties. He argues that a

preponderance of the evidence established that he was “a very

sick man”—“[a] once powerful and wealthy stockbroker

forced to leave his home ... and go to an assisted living facility

for dementia.”

The record contains evidence from Dr. Rafique, the jail

psychiatrist, and appellant's expert witnesses, Dr. Axelrad and

Dr. Pollock, that appellant suffered from delusions, dementia,

and possible psychosisin addition to his depression, and those

doctors believed that appellant's disorders were attributable to

a degenerative neurological disorder. Dr. Axelrad opined that

appellant did not know that his actions were wrong at the time

he committed the murder. On the other hand, the State's expert

witness, Dr. Moeller, opined that appellant was not suffering

from a degenerative neurological disorder and that appellant

was sane at the time he committed the offense, in conflict with

the opinions of Dr. Pollock and Dr. Axelrad. Dr. Moeller's

expert report is shorter than Dr. Axelrad's report, and Dr.

Moeller did not place the same value on the opinions and

reports of some of the experts that Dr. Axelrad relied upon in

reaching his opinion. However, this fact by itself does not

indicate that the jury's rejection of appellant's insanity defense

went against the great weight and preponderance of the

evidence.

Appellant construes the evidence as demonstrating that he was

“a very sick man” who was forced to move to an assisted

living facilityfor dementia. This viewof the evidence does not

account for the testimony of Rosemary Foltyn, Betty

McCagnan, Charles Storer, and Dr. Sprabery that appellant

had a history of drug and alcohol abuse that could also have

contributed to his mental disorders. Foltyn testified that

appellant had a history of drug and alcohol abuse, and Dr.

Sprabery testified regarding the negative effects drug and

alcohol abuse could have had on appellant's health.

Furthermore, several witnesses, including Mariano,

McCagnan, and Foltyn, testified that appellant was not placed

in assisted living due to dementia, but rather as a result of his

drug issues.

There was no medical evidence indicating that appellant

suffered from anything other than severe major depressive

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disorder and anxiety until after he committed the murder, shot

himself in the face, and was incarcerated in the Harris County

Jail. Appellant's treating psychiatrist, Dr. Sprabery, testified

that he treated appellant up until the month preceding the

offense and he had never had any reason to believe that

appellant suffered from psychosis, delusions, hallucinations,

dementia, or any degenerative neurological disorder or other

physiological reason for hismental disorders. Dr. Rafique, the

jail psychiatrist, testified that the jail records demonstrated

only that appellant suffered from major depressive disorder

until January 2011, months after the murder, at which time

appellant began experiencing symptoms of psychosis and

dementia. Dr. Pollock, one of appellant's expert witnesses,

conceded that his diagnosis of degenerative neurological

disorder conflicted with that of appellant's treating

psychiatrist, who did not believe appellant's disorders were the

result of a physical disorder. Thus, while there were

conflicting expert opinions, we cannot say the overwhelming

weight of the medical evidence indicated that appellant

suffered from dementia or psychosis at the time he committed

the murder. See Tex. Penal Code Ann. § 8.01(a) (providing

that affirmative defense of insanity applies to actor who did

not know his conduct was wrong “as a result of severe mental

disease or defect”).

*11 Furthermore, contrary to appellant's assertion, it is proper

for the jury to consider the circumstances of the crime itself.

See Graham, 566 S.W.2d at 950 (stating that although jurors

may not arbitrarily disregard expert testimony as to insanity,

neither may they give conclusive effect to such testimony); see

also Torres, 976 S.W.2d at 347–48 (holding that, in reaching

its decision on insanity, jury may consider circumstantial

evidence, including defendant's demeanor before and after

committing crime, defendant's attempts to evade police or

conceal incriminating evidence, defendant's expressions of

regret or fear of consequences of his actions, and any other

possible explanations for defendant's behavior).

The record indicates that, on the night of the offense, appellant

appeared normal when Officers Nellipallil and Scott came to

investigate the security alarm and he told them it was a false

alarm. He lied to them and attempted to conceal Janet from

them, closing the door in Officer Scott's face when Janet

stumbled into view, and the officers originally believed hislie.

When the officers returned to the house to check on Janet,

appellant asked for a warrant before he would allow them to

enter the home. Appellant tried to flee with his car keys and

his dog, but he left the dog in the vehicle and returned to the

house when he was confronted by the officers.

After the officers discovered the crime, appellant insisted on

contacting hislawyer and refused to leave his house. Hawkins,

the crisis intervention counselor, testified that appellant did

not demonstrate any of the characteristics of someone

experiencing psychosis or hallucinations. At the hospital,

appellant told a nurse that he had shot his wife, and he refused

to give a statement to police regarding the incident before

consultingwith hislawyer. This evidence regarding appellant's

demeanor before, during, and after the crime, his attempts to

evade police or conceal incriminating evidence, and his

expressions of regret or fear for the consequences of his

actions is relevant to the jury's decision to reject appellant's

insanity defense. See Torres, 976 S.W.2d at 347–48; see also

Robinson v. State, 236 S.W.3d 260, 267–68

(Tex.App.–Houston [1st Dist.] 2007, pet. ref'd) (holding that

evidence of flight may demonstrate consciousness of guilt).

Finally, the evidence from multiple witnesses regarding

appellant's history of drug abuse and evidence that appellant

and Janet were divorcing provide other possible explanations

for appellant's behavior. See Torres, 976 S.W.2d at 347–48.

We conclude that there was sufficient evidence fromwhich the

jury could determine that appellant was aware at the time he

murdered Janet that his conduct was wrong. See Tex. Penal

Code Ann. § 8.01(a); Bigby, 892 S.W.2d at 877–78 (stating

that insanity defense focuses on whether accused understood

nature of his action and whether he knew he should not do it).

We cannot conclude that the evidence supporting appellant's

affirmative defense so greatly outweighs the State's contrary

evidence that the jury's verdict was manifestly unjust. See

Matlock, 392 S.W.3d at 671–72.

We overrule appellant's first issue.

The State's Definition of “Wrong” During Voir Dire

In his second issue, appellant argues that the trial court erred

in overruling his objection to the State's use of an improper

definition of “wrong” during voir dire.

Here, the State defined the term “wrong” in the context of its

attempt to ascertain whether the potential jurors would

properly apply the law of insanity. The prosecutor stated that

“[w]rong is defined as legally, socially or morally

impermissible.” Appellant objected, stating, “There is no legal

definition for wrong, and I object to her inserting her

definition. Because since there is no legal definition, then it's

up to the jury.” The State replied that it used the definition

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“from case law.” Appellant argued, “It's not in the statute

law.” The trial court overruled the objection.

*12 On appeal, appellant argues that the trial court erred in

allowing the State to give “its own definition of wrong” and

that the prosecutor's statement of law regarding the definition

of “wrong” was incorrect. See Thompson v. State, 95 S.W.3d

537, 541 (Tex.App.–Houston [1st Dist.] 2002, no pet.)

(holding that voir dire questions that misstate law are

improper). Appellant argues that, by overruling his objection,

“the [trial] court gave the definition its imprimatur” and

impinged on the jury's ability to assign the term any meaning

which is acceptable in common parlance.

A. Standard of Review

[14] [15] [16] [17]“The trial court has broad discretion over

the process of selecting a jury.” Fuller v. State, 363 S.W.3d

583, 585 (Tex.Crim.App.2012) (quoting Sells v. State, 121

S.W.3d 748, 755–56 (Tex.Crim.App.2003)). We will not

disturb the trial court's ruling on the propriety of a particular

voir dire question absent an abuse of discretion. Id. A trial

court abuses its discretion when it prohibits a proper question

about a proper area of inquiry. Id. A question is proper if it

seeks to discover a juror's views on an issue applicable to the

case. Id. However, voir dire questions that misstate the law are

improper. Thompson, 95 S.W.3d at 541.

[18]Generally, a prosecutor's statements during voir dire will

not constitute error unless they are contrary to the trial court's

charge. See Wilder v. State, 111 S.W.3d 249, 253

(Tex.App.–Texarkana 2003, pet. ref'd). The Court of Criminal

Appeals has held that voir dire questions regarding a

particular, statutorily undefined term are proper when the

question seeks to discover the venire members' views on an

issue applicable to the trial, is not repetitious, and is not in an

improper form. Fuller, 363 S.W.3d at 586 (quotingWoolridge

v. State, 827 S.W.2d 900, 906 (Tex. Crim.App.1992)). The

court stated,

[T]he fact that no definition will be provided

[in the jury charge] for a term does not render

a prospective juror's understanding of that

term irrelevant. To the contrary, that

understanding becomes more crucial to the

intelligent exercise of either the State's or the

defendant's peremptory challenges because

there is no definition to guide what could be a

juror's skewed perception of the term.

Id. (stating, in context of analyzing allegedly

improper definition of “beyond a reasonable doubt,”

that “inquiry into a prospective juror's understanding

of what proof beyond a reasonable doubt means

constitutes a proper question regardless of whether

the law specifically defines that term. The jury's

ability to apply the correct standard of proof remains

an issue in every criminal case”).

[19] [20]Rather, when a term is undefined in the

charge, we presume that the jury “attach[ed] a

common understanding to the meaning of the term [

].” Smith v. State, 297 S.W.3d 260, 275

(Tex.Crim.App.2009). A trial court's erroneous

ruling on issues relating to questioning a venire

panel about its understanding of the burden of proof

is non-constitutional error subject to a harm analysis

under Texas Rule of Appellate Procedure 44.2(b).

See Tex.R.App. P. 44.2; Fuller, 363 S.W.3d at

587–89; Rich v. State, 160 S.W.3d 575, 577

(Tex.Crim.App.2005). We reviewnon-constitutional

error to determine whether it affected an appellant's

substantial rights. Tex.R.App. P. 44.2(b); Johnson v.

State, 43 S.W.3d 1, 4 (Tex.Crim.App.2001). An

error affects a substantial right “when the error has

a substantial and injurious effect or influence” on the

verdict. Id.

B. Analysis

*13 [21]Preliminarily, we note that appellant's

complaint is not one of charge error—the jury

charge did not define the term “wrong,” nor does

appellant argue that the charge should have included

a definition of that term. See Kirsch v. State, 357

S.W.3d 645, 651–52 (Tex.Crim.App.2012) (holding

that fact that appellate court defined

statutorily-undefined term when reviewing

sufficiency of the evidence in one case does not

necessarily mean definition must or even should be

provided to jury in future cases); Ramos v. State,

303 S.W.3d 302, 308 (Tex.Crim.App.2009)(holding

that, as general rule, terms need not be defined in

jury charge if they are not statutorily defined). Thus,

appellant's reliance on the reasoning in Kirsch,

which analyzed the harm of providing an instruction

to the jury in the jury charge itself, is misplaced in

this case. See 357 S.W.3d at 651–52.

The question in this case is whether the trial court

erred, as a matter of law, by allowing the State to

give an improper definition of the word “wrong” to

the jury that was not later incorporated in an

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instruction in the charge. The Penal Code does not

define “wrong.” However, the Court of Criminal

Appeals has held that “wrong” in the context of the

affirmative defense of insanity means “illegal” by

societal standards.Ruffin, 270 S.W.3d at 592; see

also Bigby, 892 S.W.2d at 878 (holding that focus of

insanity inquiry should not be on appellant's

morality, but should instead be on “whether [he]

understood the nature and quality of his action and

whether it was an act he ought to do.... By accepting

and acknowledging his action was ‘illegal’ by

societal standards, [Bigby] understood that others

believed his conduct was ‘wrong’ ”) (internal

citations omitted).

The prosecutor's definition of “wrong” as “legally,

socially, or morally impermissible” expressed a

commonly accepted meaning of the word that was

somewhat broader than the strict legal definition of

wrong as “illegal” by societal standards. Compare

Ruffin, 270 S.W.3d at 592 (holding that “wrong,” in

context of insanity defense, means “illegal” by

societal standards) and Bigby, 892 S.W.2d at 878

(holding that focus of insanity inquiry should be on

“whether [appellant] understood the nature and

quality of his action and whether it was an act he

ought to do.... By accepting and acknowledging his

action was ‘illegal’ by societal standards, [Bigby]

understood that others believed his conduct was

‘wrong’ ”), with Merriam–Webster's Collegiate

Dictionary 1447 (11th ed.2003) (defining “wrong”

as “not according to the moral standard” or “not

right or proper according to a code, standard, or

convention”). Appellant does not identify any other

point in the proceedings where the State's definition

of the word “wrong” was used, and it is undisputed

that the jury charge did not include any definition of

the word “wrong.” We thus presume that the jury

“attach[ed] a common understanding to the meaning

of term[ ].” See Smith, 297 S.W.3d at 275 (holding

that jurors are presumed to attach common

understanding of meaning of terms that are not

defined in jury charge). Moreover, that meaning was

closely similar to the definition in case law and, if

anything, was more favorable to appellant than the

strict legal definition.

Assuming without deciding that the trial court erred

by permitting the prosecution to define the word

“wrong” during voir dire by using a commonly

accepted definition that was broader than the

definition set out in case law, we cannot conclude

that the error had a substantial or injurious effect or

influence on the verdict against appellant or that

appellant's substantial rights were affected, as

required to demonstrate reversible error. See

Tex.R.App. P. 44.2(b); Johnson, 43 S.W.3d at 4.

*14 We overrule appellant's second issue.

Admission of Storer's Testimony

In histhird issue, appellant argues that the trial court

erred in denying his motion to suppress the

testimony of Charles Storer, his attorney and friend

whom he called in the course of committing the

offense.

A. Standard of Review

[22] [23]“In reviewing a trial court's ruling on a

motion to suppress, appellate courts must view the

evidence in the light most favorable to the trial

court's ruling.” Johnson v. State, 414 S.W.3d 184,

192 (Tex.Crim.App.2013); see also Shepherd v.

State, 273 S.W.3d 681, 684 (Tex.Crim.App.2008)

(holding that we review denial of motion to suppress

evidence for abuse of discretion). When, as here, a

trial court makes explicit fact findings, we must

determine whether the evidence viewed in the light

most favorable to the trial court's ruling supports the

fact findings. See Johnson, 414 S.W.3d at 192; see

also State v. Cullen, 195 S.W.3d 696, 699

(Tex.Crim.App.2006) (holding that trial court's

findings of fact and conclusions of law are sufficient

if they are “recorded in some way, whether written

out and filed by the trial court, or stated on the

record at the hearing”).

[24] [25] [26] [27]We review motions to suppress

pursuant to a bifurcated standard under which the

trial court's determinations of historical facts and

mixed questions of law and fact that rely on

credibility are granted almost total deference when

supported by the record. Johnson, 414 S.W.3d at

192. However, for questions of law or mixed

questions of law and fact that do not depend on the

evaluation of credibility and demeanor, we review

the trial court's ruling de novo. Id. At a suppression

hearing, the trial court “is the sole trier of fact and

judge of the credibility of the witnesses and the

weight to be given their testimony.” Wiede v. State,

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214 S.W.3d 17, 24–25 (Tex.Crim.App.2007). The

trial court may choose to believe or disbelieve any

part or all of a witness's testimony. State v. Ross, 32

S.W.3d 853, 855 (Tex.Crim.App.2000). We sustain

the trial court's ruling if it is reasonably supported by

the record and correct on any theory of law

applicable to the case. Laney v. State, 117 S.W.3d

854, 857 (Tex.Crim.App.2003).

[28]Confidential communicationsbetween client and

counsel made to facilitate legal services are

generally insulated from disclosure. See Tex.R.

Evid. 503(b)(1), 61 Tex. B.J. 374, 381 (Tex. &

Tex.Crim.App.1998, amended 2015) (providing that

client has privilege to refuse to disclose and to

prevent any other person from disclosing

confidential communications between client and

lawyer made for purpose of facilitating rendition of

professional legal services to client);3 Cameron v.

State, 241 S.W.3d 15, 19 (Tex.Crim.App.2007).

Thus, the scope of the attorney-client privilege as set

out in the rules of evidence is limited to

communications “made by a client seeking legal

advice from a lawyer in her capacity as such and the

communication must relate to the purpose for which

the advice is sought.” State v. DeAngelis, 116

S.W.3d 396, 404 (Tex.App.–El Paso 2003, no pet.).

“[T]he proof, express or circumstantial, must

indicate the client's desire for confidence and

secrecy.” Id.

*15 “A communication is ‘confidential’ if not

intended to be disclosed to third persons other than

those to whom disclosure is made in furtherance of

the rendition of professional legal services to the

client or those reasonably necessary for the

transmission of the communication.” Tex.R. Evid.

503(a)(5), 61 Tex. B.J. at 381; DeAngelis, 116

S.W.3d at 404. Rule 503(b)(2) adds a special rule of

privilege for criminal cases: “In criminal cases, a

client has a privilege to prevent the lawyer or

lawyer's representative from disclosing any other

fact which came to the knowledge of the lawyer or

the lawyer's representative by reason of the

attorney-clientrelationship.” Tex.R. Evid. 503(b)(2),

61 Tex. B.J. at 381; Cameron, 241 S.W.3d at 19.

[29] [30]“In general, privileges are exclusionary

rules of evidence that may be used to suppress

relevant evidence.” Cameron, 241 S.W.3d at 19.

The rule specifies that the privilege may be claimed

by the client or the attorney on behalf of the client.

Tex.R. Evid. 503(c); 61 Tex. B.J. at 382; Cameron,

241 S.W.3d at 19; see also Carmona v. State, 941

S.W.2d 949, 953 (Tex.Crim.App.1997)(holding that

attorney-client privilege is designed for client's

benefit by guaranteeing confidentiality to promote

forthright communications between lawyer and

client). The client can waive the privilege by

voluntarily disclosing or consenting to the disclosure

of a significant part of the privileged matter.Tex.R.

Evid. 511(1), 61 Tex. B.J. at 387;4Carmona v. State,

947 S.W.2d 661, 663 (Tex.App.–Austin 1997, no

pet.). Disclosure by the attorney does not waive the

privilege absent the client's consent. Carmona, 947

S.W.2d at 663 (citing Cruz v. State, 586 S.W.2d

861, 865 (Tex.Crim.App.1979)).

[31]A party asserting a privilege has the burden of

showing that the privilege applies. Peto v. State, 51

S.W.3d 326, 327 (Tex.App.–Houston [1st Dist.]

2001, pet. ref'd); Carmona, 947 S.W.2d at 663

(“The privilege claimant must prove the existence of

the privilege.”) (citing Austin v. State, 934 S.W.2d

672, 674 (Tex.Crim.App.1996), and Carmona, 941

S.W.2d at 954 n. 6).

[32] [33] [34] [35]Once the privilege has been

established, the party seeking to establish waiver of

the privilege has the burden of going forward with

evidence that supports a finding of waiver.

Carmona, 947 S.W.2d at 663 (citing Carmona, 941

S.W.2d at 953). Waiver may be inferred from the

totality of the circumstances and reasonable

inferences. Id. The disclosure of the privileged

material by defense counsel is relevant in

determining waiver. Id. After the State has gone

forward with evidence supporting waiver of the

privilege, the party claiming the privilege “may find

it wise to present evidence of no waiver.” Id.

[36] [37]We review the trial court's decision on the

applicability of a privilege for an abuse of discretion.

Id. at 664. We can reverse a decision only if “the

trial court applied an erroneous legal standard, or

when no reasonable viewof the record could support

the trial court's conclusion under the correct law and

the facts viewed in the light most favorable to its

legal conclusion.” Id. (quoting DuBose v. State, 915

S.W.2d 493, 498 (Tex.Crim.App.1996)).

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B. Analysis

*16 [38]Here, appellant moved to suppress Storer's

testimony regarding the content of appellant's phone

calls to him on the night of the murder based on an

assertion of attorney-client privilege. The trial court

held a hearing and determined that the

attorney-client privilege did not apply to the phone

calls appellant made in the course of committing the

offense.

The record contains conflicting evidence regarding

the nature of appellant's relationship with Storer at

the time the phone calls occurred. Storer testified

that he communicated that night with appellant as his

attorney and provided him with legal advice. The

record also contained evidence that appellant told

police that he wanted to see his attorney and that

when Storer arrived on the scene, he introduced

himself as appellant's attorney.

However, it was undisputed that appellant and Storer

were long-time friends, and Storer testified that he

was probably appellant's closest friend. Appellant

did not call Storer's legal office; rather, he called

Storer's cell phone. Storer also acknowledged that he

did not typically practice criminal defense law.

During the suppression hearing, he testified that the

advice he gave appellant consisted of informing him

that the murder was not a capital offense for which

he could receive the death penalty, and Storer

admitted that this was the type of advice he would

give to anyone, whether they were a client or a

friend. The remaining content of the phone

conversations—e.g., appellant's assertion that he

wanted to commit suicide and his wishes for his

burial, and Storer's attempt to talk appellant out of

killing himself—are more typically conversations

one would have with a friend, not one's attorney.

Storer acknowledged, both to police officers on the

day following the murder and at trial, that he had

never represented appellant in a criminal matter.

And Storer acknowledged that when he called 9–1–1

and later made his statement to police, it did not

occur to himto assert the attorney-client privilege on

appellant's behalf.

Viewing the evidence in the light most favorable to

the trial court's ruling, as we must, we conclude there

is evidence to support the trial court's ruling that

these communications were not confidential

communications between client and counsel made to

facilitate legal services. See Tex.R. Evid. 503(a)(5),

61 Tex. B.J. at 381 (“A communication is

‘confidential’ if not intended to be disclosed to third

persons other than those to whom disclosure is made

in furtherance of the rendition of professional legal

services to the client or those reasonably necessary

for the transmission of the communication.”);

Cameron, 241 S.W.3d at 19. Nor did these phone

calls constitute the disclosure of “any other fact

which came to the knowledge of the lawyer or the

lawyer's representative by reason of the

attorney-client relationship.” See Tex.R. Evid.

503(b)(2), 61 Tex. B.J. at 381; Cameron, 241

S.W.3d at 19. Rather, the evidence supports the trial

court's conclusion that appellant's communications

were made to Storer in his capacity as appellant's

close friend, and not as an attorney providing legal

representation.

Although the record contains some conflicting

evidence, the trial court is the sole trier of fact and

judge of the credibility of the witnesses and the

weight to be given their testimony at a suppression

hearing, and we are to grant almost total defense to

the trial court's determinations of historical fact and

mixed questions of law and fact that rely on

credibility when they are supported by the record.

See Johnson, 414 S.W.3d at 192; Wiede, 214

S.W.3d 17, 24–25. We cannot conclude that the trial

court “applied an erroneous legal standard” or that

“no reasonable view of the record could support the

trial court's conclusion” that appellant failed to meet

his burden of establishing that the attorney-client

privilege applied to his communications. See

Carmona, 947 S.W.2d at 664.

*17 Given this record, we cannot conclude that the

trial court abused its discretion in finding that the

attorney-client privilege did not apply to these

communications. See Johnson, 414 S.W.3d at 192

(evidence must be viewed in light most favorable to

trial court's ruling); Carmona, 941 S.W.2d at 953

(attorney-client privilege is designed to guarantee

confidentialityto promote forthright communication

between lawyers and client); see also DeAngelis,

116 S.W.3d at 404 (attorney-client privilege applies

to communications “made by a client seeking legal

advice from a lawyer in her capacity as such and the

communication must relate to the purpose for which

the advice is sought” and “the proof ... must indicate

the client's desire for confidence and secrecy.”).

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We overrule appellant's third issue.

Constitutionality of Court Costs

Following his conviction, the trial court assessed the

mandatory $133 in consolidated court costs. In his

fourth issue, appellant complains that a portion of

the court costs, the “crime stoppers fee,” does not

fund any cost for the court's function and thus is

facially unconstitutional. Appellant argues that this

fee should more properly be characterized as a tax

and that requiring courts to collect costs for such a

tax or program that is not refunded back to the courts

is a violation of the separation of powers clause

because it imposes an executive function on the

judicial branch.

A. Standard of Review

[39] [40] [41]In addressing a constitutional

challenge, this court “must begin with the

presumption that the statute is valid and that the

Legislature did not act arbitrarily or unreasonably in

enacting it.” State v. Rosseau, 396 S.W.3d 550, 557

(Tex.Crim.App.2013); Salinas v. State, 426 S.W.3d

318, 326 (Tex.App.–Houston [14th Dist.] 2014, pet.

granted). The party challenging the statute “has the

burden to establish its unconstitutionality.” Rosseau,

396 S.W.3d at 557; Salinas, 426 S.W.3d at 326.

“[T]o prevail on a facial challenge, a party must

establish that the statute always operates

unconstitutionally in all possible circumstances.”

Rosseau, 396 S.W.3d at 557; Salinas, 426 S.W.3d at

326.

[42]The Texas Constitution contains an express

separation-of-powers provision. Tex. Const, art. II,

§ 1; Ex parte Lo, 424 S.W.3d 10, 28

(Tex.Crim.App.2013) (op. on reh'g). “This division

ensures that power granted one branch may be

exercised by only that branch, to the exclusion of

others,” and “therefore requires that ‘any attempt by

one department of government to interfere with the

powers of another is null and void.’ ” Ex parte Lo,

424 S.W.3d at 28 (quoting Meshell v. State, 739

S.W.2d 246, 252 (Tex.Crim.App.1987)). The Court

of Criminal Appeals has recently held:

We have viewed the Texas [separation-of-powers]

provision as generally susceptible to violation in one

of two ways:

(1) when one branch of government assumes or is

delegated a power “more properly attached” to

another branch, or

(2) when one branch unduly interferes with

another branch so that the other branch cannot

effectively exercise its constitutionally assigned

powers.

Id. (quoting Ex parte Gill, 413 S.W.3d 425, 431–32

(Tex.Crim.App.2013)). Appellant argues that the

statutory scheme for collection of the crime stoppers

fee improperly delegates a power to the judicial

branch that is more appropriately attached to the

executive branch. See id.

Regarding the allocation of court costs addressed by

appellant, Texas Local Government Code section

133.102(a)(1) provides that a person convicted of a

felony offense “shall pay as a court cost, in addition

to all other costs,” $133. Tex. Local Gov't Code

Ann. § 133.102(a)(1) (Vernon Supp.2014). The

Local Government Code further provides that these

court costs “shall be collected and remitted to the

comptroller” and that the comptroller shall allocate

a statutorily determined percentage of the court costs

according to a list of specific accounts and funds. Id.

§ 133.102(b), (e); see also Tex. Const. art. IV, § 1

(providing that Comptroller of Public Accounts is

one of six officers of state's executive department).

Among those funds is “crime stoppers assistance,”

which is to receive 0.2581 percent of the

consolidated court costs, or, in this case,

approximately $0.34. See Tex. Local Gov't Code

Ann. § 133.102(e)(2).

*18 Texas Code of Criminal Procedure chapter 102

provides specifically for the allocation of the crime

stoppers assistance account. Tex.Code Crim. Proc.

Ann. art. 102.013 (Vernon 2006). Specifically,

article 102.013 provides:

The legislature shall appropriate funds from

the crime stoppers assistance account to the

Criminal Justice Division of the Governor's

Office. The Criminal Justice Division may use

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10 percent of the funds for the operation of the

toll-free telephone service under Section

414.012, Government Code, and shall

distribute the remainder of the funds only to

crime stoppers organizations. The Criminal

Justice Division may adopt a budget and rules

to implement the distribution of these funds.

Id. art. 102.013(a).

The Texas Government Code contains provisions

defining and regulating crime stoppersorganizations.

It defines “crime stoppers organizations” to include

either private or public organizations that pay

“rewards to persons who report to the organization

information about criminal activityand that forward[

] the information to the appropriate law enforcement

agency.” Tex. Gov't Code Ann. § 414.001(2)

(Vernon 2012). The Government Code also provides

for a “Texas Crime Stoppers Council,” organized

under the criminal justice division of the governor's

office, to “encourage, advise, and assist in the

creation of crime stoppers organizations” and to

“encourage, advise, and assist crime stoppers

organizations in implementing” programs, among

other duties. Id. §§ 414.002(a), 414.005 (Vernon

2012 & Supp.2014).

B. Analysis

[43]Here, appellant complains that the “crime

stoppers fee,” included in the consolidated court

costs assessed against him, is not actually a cost of

court, but is instead a tax. He argues that delegating

the collection of this tax to the judicial branch

violates the separation of powers clause of the Texas

Constitution by delegating a power to the judicial

branch that is more appropriately attached to the

executive branch. Thus, he argues, the court costs

are facially unconstitutional.

Our sister court of appeals recently addressed a

similar argument when an appellant argued that

Local Government Code section 133.102 was

facially unconstitutional because “the usesspecified

in section 133.102(e) for the court costs collected

undersection 133.102(a)(1) include usesthat are not

properly characterized as ‘costs of court’ ” and,

therefore, that section “impermissibly requires the

judicial branch to perform an executive function by

collecting a tax.” Salinas, 426 S.W.3d at 325; see

also O'Bannon v. State, 435 S.W.3d 378, 381–82

(Tex.App.–Houston [14th Dist.] 2014, no pet.)

(analyzing similar complaint).

In both Salinas and O'Bannon, the Fourteenth Court

of Appeals held that the appellant failed to satisfy his

burden to show that the statute was facially invalid

because he had not shown that the funds would not

be used for criminal justice activities once they were

distributed. See O'Bannon, 435 S.W.3d at 382;

Salinas, 426 S.W.3d at 327. Here, appellant argues

that he need not provide evidence regarding how the

“crime stoppers assistance” fee is distributed

because the Code of Criminal Procedure provides

that those funds are to be distributed to “the Criminal

Justice Division of the Governor's Office,” which

“may use 10 percent of the funds for the operation of

the toll-free [crime stoppers] telephone service” and

“shall distribute the remainder of the funds only to

crime stoppers organizations.” See Tex.Code Crim.

Proc. Ann. art. 102.013(a). He contends that these

are not judicial branch activities, but executive

branch activities that are administered by the

executive branch of the State government.

*19 A review of the statutes related to crime

stoppers organizations, however, reveals that funds

collected for the “crime stoppers assistance” fund are

sufficiently related to the collection of evidence in

criminal cases to constitute legitimate criminal

justice activities. See O'Bannon, 435 S.W.3d at 382

(addressing similar argument regarding collection of

DNA testing fee). “Crime stoppers organizations”

include either private or public organizations that

pay “rewards to persons who report to the

organization information about criminal activity and

that forward[ ] the information to the appropriate law

enforcement agency.”Tex. Gov't Code Ann. §

414.001(2). The “Texas Crime Stoppers Council”

has numerous duties, including the duties to

“encourage, advise, and assist in the creation of

crime stoppers organizations,” to “foster the

detection of crime and encourage persons to report

information about criminal acts,” to “promote the

process of crime stoppers organizations to forward

information about criminal acts to the appropriate

law enforcement agencies,” to “help law

enforcement agencies detect and combat crime by

increasing the flow of information to and between

law enforcement agencies,” and to “encourage,

advise, and assist crime stoppers organizations in

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implementing” specialized programs targeting sex

offenders, among other duties. Id. § 414.005.

Thus, thisstatutory scheme allocates resources to be

expended for legitimate criminal justice purposes.

See O'Bannon, 435 S.W.3d at 382 (holding that

“interconnected provisions” permitted DNA Testing

Fee to be redistributed through state highway fund to

Department of Public Safety “for legitimate criminal

justice purposes”); cf. Ex parte Lo, 424 S.W.3d at 28

(holding that separation-of-powers provision may be

violated “when one branch of government assumes

or is delegated a power ‘more properly attached’ to

another branch” or “when one branch unduly

interferes with another branch so that the other

branch cannot effectivelyexercise its constitutionally

assigned powers.”). Accordingly, appellant has

failed to satisfy his burden to show that the statute is

facially invalid. See Rosseau, 396 S.W.3d at 557.

We overrule appellant's fourth issue.

Conclusion

We affirm the judgment of the trial court.

All Citations

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Footnotes

1 See Tex. Penal Code Ann. § 19.02 (Vernon 2011).

2 The jury charge did not define “wrong.” The jury charge contained, in relevant part, an instruction that the jury could find appellant

not guilty by reason of insanity if it found by a preponderance of the evidence that, “as a result of severe mental disease or defect,

[he] did not know that his conduct was wrong.”

3 Effective April 1, 2015, the Texas Supreme Court adopted amendments to the rules of evidence. 78 Tex. B.J. 42, 42 (Tex.2015). The

revisions to Rule of Evidence 503 were stylistic and do not affect the substance of the rule. We cite the old rule, as that version as

in effect at the time this case was tried.

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McAfee v. State, --- S.W.3d ---- (2015)

4 Effective April 1, 2015, Rule 511 was revised to conform with Federal Rule of Evidence 502. 78 Tex. B.J. at 42. Rule of Evidence

511(a)(1) now provides: “A person upon whom these rules confer a privilege against disclosure waives the privilege if ... the person

or a predecessor of the person while holder of the privilege voluntarily discloses or consents to disclosure of any significant part of

the privileged matter unless such disclosure is itself privileged [.]” Tex.R. Evid. 511(a)(1). Again, we cite the prior version of the

rule, which was in effect at the time this case was tried.

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