January 13, 2016

Texas Courts of Appeals

Porter v. State (1st COA)

No. 01-15-00960-CR         1/10/17


Does the attorney-client privilege or the special rule for criminal cases found in Tex. R. Evid. 503(b)(2) protect from disclosure an attorney’s description of conduct he engaged in to remove and secrete material evidence from a crime scene?


No. Attorney conduct that constitutes tampering with evidence is not in furtherance of the attorney-client relationship, which is required to invoke the privilege. When a lawyer engages in tampering with evidence, with or without the client knowing about it, the lawyer is not engaged in rendering legal services for that client. Read opinion.


The facts of this case read like something out of a crime novel from the bargain bin at the used book store. Texas has a little-known “extra” in the attorney-client privilege rule that the defendant tried to invoke in this case, but the appellate court did not buy it. The decision is consistent with other opinions limiting the reach of Rule 503(b)(2). Texas courts have similarly ruled that matters such as a defendant’s presence in town on the day of a murder, competency to stand trial, knowledge of a court setting, authenticity of a defendant’s signature on plea papers, and presence at a crime scene were not barred by that same provision.

Mandatory Brady Training

Every lawyer in a prosecutor office prosecuting criminal cases above Class C misdemeanors must complete a mandatory one hour training on Brady and the duty to disclose exculpatory evidence within 180 days of beginning work as a prosecutor. See Tex. Gov’t Code §41.111. TDCAA offers a court-approved class online that is free. You can find it on the TDCAA web site here. Once you complete the course, TDCAA will report your compliance to the Court of Criminal Appeals. If you have any questions, call Rob Kepple at 512-474-2436.

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