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Click here for the full text of this decision FACTS:On May 6, 2003, at about 10:30 p.m., Danny Lee Mixon went to a trailer house in Harris County where Connie Gomez and Dwayne Ramdhanny lived. Both of them opened the door when Mixon knocked. Gomez saw Mixon put on a glove, pull out a handgun and point it at Ramdhanny. She jumped in front of Ramdhanny just as Mixon fired and the bullet went through Gomez’s hand, hitting Ramdhanny in the face. Ramdhanny retreated into the adjacent bedroom, but Mixon followed and shot him several times more as Ramdhanny lay on the floor. Mixon then turned to Gomez, who ran into a bathroom, closing the door behind her. Mixon fired his remaining bullets at the bathroom door, and then left the trailer house. Ramdhanny died as a result of his injuries, but Gomez survived. Mixon worked at a store called Northshire Video. Peter Heckler was the attorney of record for the store. According to Heckler’s testimony, he was also generally responsible for the store although he neither managed nor supervised the store directly. At about midnight on May 6, 2003, Heckler received a telephone call from a store clerk who told him that the police had come looking for Mixon at the store. Three hours later, Mixon himself called Heckler, but Heckler refused to talk to him at that time, because it was late at night. The two men met later that morning and discussed the case at length. Heckler’s testimony at trial indicated that he and Mixon agreed that he would represent Mixon. But when Heckler realized that his own gun might have been used in the offense, he declined to represent Mixon. Heckler also testified that Mixon did not want the police to acquire the handgun or the store videotape from the night of the murder. Heckler, however, failed to clarify in this testimony whether it was he or Mixon who suggested actually getting rid of the gun and the videotape. According to the record, Heckler picked up the gun from the store and turned it over to police two days later. The videotape was never found. During the guilt phase of Mixon’s trial, the state and defense counsel asked the court to determine whether the attorney-client privilege prohibited Heckler from testifying about Mixon’s discussion of the case with him. The trial court held a hearing outside the presence of the jury to address this question. Heckler was sworn in as a witness, and the trial court sought to determine what he intended to testify to before the jury. The defense counsel objected on the ground that divulging any part of Heckler’s conversation with Mixon was a violation of the attorney-client privilege. The trial court stated that defense counsel’s objection was “well taken” but explained that it needed to know exactly what Heckler’s testimony would be to determine how much of it to allow in front of the jury. After listening to Heckler’s testimony and interrogating him at length, the trial court ruled that it would allow only that part of Heckler’s testimony indicating that Mixon had asked him to get rid of the gun. The record, however, showed that Heckler’s testimony on direct examination went beyond the court’s ruling. The trial court had to intervene, send the jury out and admonish the state and the witness to focus the testimony on the limited question of whether Mixon asked Heckler to get rid of the gun. In spite of the court’s efforts to confine the witness’ testimony to this critical point, Heckler failed to unequivocally state that Mixon asked him to get rid of the gun. The trial court did not pursue the matter further. The jury found Mixon guilty of murder and sentenced him to life imprisonment. On direct appeal, Mixon argued that the trial court erred in allowing Heckler to testify that Mixon did not want the weapon or the videotape to be turned over to the police, thereby violating attorney-client privilege. First, the state asserted that the attorney-client privilege was not available to Mixon, because the evidence did not establish a contractual attorney-client relationship between him and Heckler. Second, the state argued that even if an attorney-client relationship existed, Texas Rule of Evidence 503(d) barred the application of the attorney-client privilege to the case, because Mixon was trying to persuade Heckler to commit a “crime and fraud.” The 14th Court did not address the state’s second argument but concluded that Heckler’s testimony did not support a finding that an attorney-client relationship existed. Thus, the 14th Court held that the trial court did not abuse its discretion in admitting the testimony. HOLDING:Vacated and remanded. The state argued that sound public policy required that an attorney-client relationship exist before an attorney-client privilege can be recognized; otherwise, a defendant could call 10 different lawyers, leave messages on their answering service, and then expect an attorney-client privilege to attach to each of these messages. The CCA disagreed. The fact, the CCA stated, that the hypothetical message was left on an answering machine and is thus likely to be overheard by third parties might serve to exclude the communication from the privilege. Contrary to the state’s arguments in favor of a narrow privilege, the CCA stated that allowing the privilege only after a contractual attorney-client relationship already had been established was not only contrary to the wording of the evidentiary rule but would also be unsound public policy. Such a policy, the CCA stated, would have a chilling effect on defendants’ willingness to be candid with the lawyers whose services they seek. Moreover, the CCA stated, such a lack of candor on the potential client’s part would not be in the lawyer’s best interest either, because the lawyer would then have to decide whether to represent a person before that person could feel free to give him or her all the information necessary to make that decision. Thus, the CCA held that “once Heckler started to elicit from appellant such incriminating information that a person would feel free to share only with his lawyer, he was bound by the same duties of confidentiality that a lawyer owes a client that he has agreed to represent, even though Heckler eventually decided not to represent appellant.” The state, however, also argued before the 14th Court that the Rule 503(d) crime-fraud exception to the attorney-client privilege applied. The CCA remanded the case to the 14th Court to address this argument. OPINION:Holcomb, J., delivered the opinion for a unanimous court.

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