Opinion
No. 05-06-01230-CR
Opinion issued September 18, 2009. DO NOT PUBLISH. Tex. R. App. P. 47
On Appeal from the 86th Judicial District Court, Kaufman County, Texas, Trial Court Cause No. 23338-86.
Before Justices MORRIS, WRIGHT, and FITZGERALD.
MEMORANDUM OPINION ON REMAND
After the jury found Beverly Kirkpatrick guilty of tampering with a government record, the trial court sentenced her to two years' confinement. On original submission, this Court determined the trial court lacked jurisdiction and reversed appellant's convictions. See Kirkpatrick v. State, No. 05-06-01275-CR (Tex. App.-Dallas Apr. 17, 2007), rev'd, 279 S.W.3d 324 (Tex. Crim. App. 2009) (op. on reh'g). On appellant's petition for discretionary review, the Texas Court of Criminal Appeals reversed this Court's judgment, holding the indictment was sufficient to vest the district court with jurisdiction. Kirkpatrick, 279 S.W.3d at 329. The court of criminal appeals remanded this case for us to consider appellant's second issue, claiming the trial court erred by overruling her objection under the attorney-client privilege. Id. We overrule appellant's issue and affirm the trial court's judgment. In her issue on remand, appellant contends the trial court erred by admitting testimony protected by the attorney-client privilege. Specifically, appellant maintains the trial court should not have allowed the State to elicit testimony from Tiffany Bescherer, an attorney who represented appellant during an extradition hearing in 2005. After reviewing the record, we disagree. The rule establishing attorney-client privilege provides, in relevant part, that a client may refuse to disclose and may prevent the disclosure of confidential communications made for the purpose of facilitating the rendition of professional legal services to the client or among the client, her representatives, her lawyer, and her lawyer's representatives. See Tex. R. Evid. 503(b)(1). A client in a criminal case also may prevent her lawyer 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. See id. 503(b)(2). The burden of establishing the privilege is on the party asserting it. Harvey v. State, 97 S.W.3d 162, 168 (Tex. App.-Houston [14th Dist.] 2003, pet. ref'd) (citing Strong v. State, 773 S.W.2d 543, 552 (Tex. Crim. App. 1989)). We review the trial court's decision for an abuse of discretion. Kos v. State, 15 S.W.3d 633, 637 (Tex. App.-Dallas 2000, pet. ref'd). Here, Bescherer testified she represented appellant in an extradition hearing in 2005. During her representation, she filed a motion for continuance with a letter from Dr. Michael D. Grant attached. Bescherer received the letter via her facsimile machine. Over objection, she then testified she had requested the letter from appellant. Bescherer then explained that she did not produce the letter, and that if the content of the letter were shown to be false, she was not aware of its falsity at the time she filed the motion. After filing the motion, she withdrew as counsel. The complained-of testimony-that Bescherer requested appellant to provide a letter in support of the motion for continuance-did not disclose any confidences. See Harvey, 97 S.W.3d at 168 (attorney's testimony that he requested proof to support an allegation of negligent transmission of a communicable disease was a communication, but did not disclose a confidence). The privilege protects what the client has disclosed in confidence, not the fact that an attorney has requested such a disclosure. Id. Thus, we conclude the trial court did not abuse its discretion by allowing the complained-of testimony. We overrule appellant's issue on remand. Accordingly, we affirm the trial court's judgment.
Appellant was charged with several offenses, including forgery, felony tampering with a government record, and holding herself out as a lawyer, in three indictments. Her second issue on original submission was raised only in cause number 05-06-1230-CR and that is the sole case remanded to this Court for our consideration. In this case, the State alleged appellant tampered with a government record by falsifying a letter from Dr. Michael D. Grant, which was attached to a motion for continuance in another matter.