Today, the Court bars the admission of evidence even though: (1) the police did nothing wrong in obtaining the evidence, and (2) the evidence involves a defendant's attempt to subvert his trial by having one of the State's witnesses killed. This odd result is not dictated by Supreme Court precedent or by the purposes underlying the Sixth Amendment. Although this Court's opinion is consistent with its recent opinion in Wesbrook v. State,⁽¹⁾ we should take this opportunity to reexamine and disavow Wesbrook's conclusions about the admissibility of this type of evidence.⁽²⁾

The Sixth Amendment right to counsel is violated when an undercover government agent deliberately elicits from a defendant incriminating evidence of an offense for which the defendant has already been charged.⁽³⁾ "The Sixth Amendment right, however, is offense specific" and does not apply to crimes for which adversary criminal proceedings have not been initiated.⁽⁴⁾ The Supreme Court's decision in Maine v. Moulton addressed the application of the Sixth Amendment to undercover investigations relating to multiple crimes, some of which had been charged and some of which had not. The Supreme Court held that, even though a defendant is charged with a crime, the government may legitimately conduct undercover investigations of extraneous, uncharged crimes and use the evidence recovered in prosecutions for the extraneous crimes.⁽⁵⁾ However, the government may not use evidence pertaining to the charged offense at the trial of the charged offense even though the evidence may have been obtained incidentally during the government's investigation of uncharged, extraneous crimes.⁽⁶⁾ What Moulton did not decide is whether (or to what extent) the government may use evidence pertaining to an uncharged, extraneous offense at the trial of the charged offense.⁽⁷⁾ That issue was presented in Wesbrook and is presented now in this case.

In Texas v. Cobb, the United States Supreme Court disavowed the doctrine, expounded by several lower courts including this Court, of extending the Sixth Amendment right to counsel to uncharged offenses that are closely related factually to the charged offense.⁽⁸⁾ The Supreme Court pointed out the error of expanding the scope of the Sixth Amendment right to counsel beyond the Supreme Court's earlier pronouncements: "We hold that our decision in McNeil v. Wisconsin...meant what it said, and that the Sixth Amendment right is 'offense specific.'"⁽⁹⁾ As the lead opinion observes, Cobb does not speak directly to the issue at hand. Nevertheless, the Supreme Court's restrictive construction of the Sixth Amendment right to counsel is at odds with our expansive interpretation of the right in Wesbrook. Cobb illustrates that this Court should not too hastily extend the Sixth Amendment right to counsel to situations not directly addressed by the Supreme Court.⁽¹⁰⁾

The lead opinion in Wesbrook relied upon the Supreme Court's opinion in Moulton to support its conclusion that a constitutional violation occurred. But four factors distinguish this case from Moulton and support finding that there was no Sixth Amendment violation.

In Moulton, the Supreme Court was concerned that law enforcement officials might fabricate the existence of an extraneous offense to use as a pretext to elicit evidence of the charged offense.⁽¹⁵⁾ But the present case is not one in which authorities investigated an extraneous offense and incidentally found proof of the charged offense. Here, the police investigated an extraneous offense, and evidence of that offense is exactly what they discovered. That the extraneous offense may have probative value in a prosecution for the charged offense is immaterial because it is still an extraneous offense. As the Sixth Amendment right to counsel had not attached to the uncharged extraneous offense, the police were entitled to investigate that offense, and the State should be allowed to use that evidence in any proceeding brought against the defendant.

The statements made by Moulton related the details of a past crime.⁽¹⁶⁾ The statements made by appellant, however, constituted a present crime (solicitation of murder) or a proposed future crime (murder, to be carried out in the future). This works strongly against finding a Sixth Amendment violation. Federal cases in the Seventh and Eleventh Circuits have held that the Sixth Amendment does not bar admission, at the trial for the charged offense, of statements that constitute a present crime or address a crime to be committed in the future.⁽¹⁷⁾ Statements that constitute a present crime or propose a future crime are uniquely outside the attorney-client relationship because there is no right to the assistance of counsel in committing a new crime.⁽¹⁸⁾ These types of statements are not covered by the attorney-client privilege, and the ethical rules do not require attorneys to keep such information confidential.⁽¹⁹⁾ If a defendant made such statements in counsel's presence, counsel might be obligated to reveal those statements.⁽²⁰⁾ If counsel had been present during the exchange between appellant and the undercover informant, any advice to the defendant to refrain from making the statements would be "not because the statements would have shown a consciousness of guilt of complicity in...murder, but because his statements, themselves, were the operative acts of a separate criminal offense."⁽²¹⁾ As the Eleventh Circuit has noted, "Massiah is not a magic cloak with respect to future conduct."⁽²²⁾

What appellant attempted to do here was to subvert his criminal trial by killing one of the prosecution's witnesses. When the new criminal activity involves an attempt to subvert a defendant's upcoming trial, a form of estoppel should arise with regard to any Sixth Amendment claim the defendant might otherwise have: the defendant should not be permitted to claim that he was wronged by the admission of such evidence at the very proceeding the defendant has tried to improperly influence:⁽²³⁾

[W]e perceive no reason why this sort of evidence concerning post-indictment obstruction of justice should not be admissible at a hearing on sentence. The sentencing judge is entitled to know that the defendant has attempted to distort the very proceeding at which the sentence is determined. Yet since obstruction of justice occurred after the guilty plea, the government necessarily conducted its investigation into this activity after the indictment had been filed. In these circumstances, if we adopted defendant's understanding of Massiah and required the government to contact defendant's counsel before using an informer, the government would be effectively prevented from fully investigating such conduct and from obtaining such compelling evidence for the sentencing judge. We refuse to read Massiah as providing a shield for defendant's attempts to interfere with the sentencing process.⁽²⁴⁾

Appellant's argument is akin to that of a defendant who has murdered his parents asking the court to take pity on him because he is an orphan.

The disputed evidence in Moulton was presented during the guilt phase of trial, while the evidence here was presented during the punishment phase. Recently the First Circuit, while holding such evidence to be inadmissible at the guilt stage of trial, indicated that it would be admissible at sentencing.⁽²⁵⁾ And in United States v. Kidd, the Fourth Circuit held that the Sixth Amendment was not violated by the introduction of an extraneous offense (elicited by an undercover agent after indictment in the primary case) at the sentencing phase of trial for the charged offense.⁽²⁶⁾ In Kidd, the defendant was charged with several offenses regarding the possession and distribution of cocaine.⁽²⁷⁾ Later, an undercover informant made a tape-recorded purchase of cocaine from the defendant.⁽²⁸⁾ The defendant pled guilty to one of the earlier distribution offenses, and at sentencing, the post-indictment sale was introduced as relevant conduct to enhance the defendant's punishment under the Federal Sentencing Guidelines.⁽²⁹⁾ Although the court expressed doubt about the propriety of introducing this evidence at the guilt stage of trial,⁽³⁰⁾ it held that the Sixth Amendment did not prohibit the introduction of the evidence at sentencing.⁽³¹⁾ In arriving at this holding, the Fourth Circuit remarked, "The Sixth Amendment does not create a sanctuary for the commission of additional crimes during the pendency of an indictment."⁽³²⁾

For these reasons, I would hold that the trial court did not err in admitting appellant's statements.

KELLER, Presiding Judge.

DATE DELIVERED: October 24, 2001

PUBLISH

1. 29 S.W.3d 103 (Tex. Crim. App. 2000).

2. Some of the arguments in this opinion are discussed in greater detail in my concurring opinion in Wesbrook. Id. at 123-127 (Keller, J. concurring).

3. ³ Maine v. Moulton, 474 U.S. 159, 171-174 (1985); see also Massiah v. United States, 377 U.S. 201 (1964).

4. ⁴ McNeil v. Wisconsin, 501 U.S. 171, 175 (1991).

5. ⁵ Moulton, supra; see also McNeil, 501 U.S. at 176.

6. ⁶ Moulton, supra; see also United States v. Terzado-Madruga, 897 F.2d 1099, 1110 (11^th Cir. 1990).

7. See Moulton, supra; Wesbrook, 29 S.W.3d at 123-127 (Keller, J. concurring).

8. U.S. , 121 S. Ct. 1335 (2001).

9. Id. at 1339 (citation omitted).

10. In any event, we should not consider ourselves wedded to our prior decision in Wesbrook. Although seven judges agreed that the defendant's statements were erroneously admitted, Wesbrook was a fractured decision. The lead opinion (plurality) found error but held it to be harmless,⁽¹¹⁾

11. Wesbrook, 29 S.W.3d at 116-119 (plurality opinion). ⁽¹²⁾

12. Id. at 127-128 (Womack, J. dissenting). ⁽¹³⁾

13. Id. at 123-127 (Keller, J. concurring). ⁽¹⁴⁾

14. Id., passim.

15. Moulton, 501 U.S. at 180.

16. ¹² When Moulton raised the possibility of killing a government witness, he may well have been proposing a future crime, but that evidence was obtained before the informant became a government agent and was not the focus of the opinion in Moulton.

17. ¹³ United States v. Moschiano, 695 F.2d 236, 240-243 (7^th Cir. 1982), cert. denied, 464 U.S. 831 (1983); United States v. Darwin, 757 F.2d 1193 (11^th Cir. 1985), cert. denied, 474 U.S. 1110 (1986). A similar holding occurred in Grieco v. Meachum, 533 F.2d 713, 717-718 (1^st Cir.), cert. denied, 429 U.S. 858 (1976), but the First Circuit subsequently held that Grieco had been overruled by Moulton. Bender, 221 F.3d 265, 269 n. 4 (1^st. Cir. 2000).

18. ¹⁴ Moschiano, 695 F.2d at 241; Darwin, 757 F.2d at 1200..

19. ¹⁵ Grieco, 533 F.2d at 718 n. 4 ("The privilege generally does not extend to confidences concerning present and future criminal activity"); see also Tex. R. Evid. 503(d)(1); Tex. Disc. R. Prof. Conduct 1.05(c)(7) & (8).

20. ¹⁶ Darwin, 757 F.2d at 1200; see also Tex. Disc. R. Prof. Conduct 1.05(e); Henderson v. State, 962 S.W.2d 544, 554-556 (Tex. Crim. App. 1997).

21. ¹⁷ Grieco, 533 F.2d at 718 (ellipsis inserted).

22. ¹⁸ Darwin, 757 F.2d at 1199 (quoting United States v. DeWolf, 696 F.2d 1, 3 (1^st Cir. 1982)).

23. ¹⁹ Id. (noting the irony that attempts by a defendant to improperly influence a proceeding may then become admissible in that proceeding; if so, "that is the defendant's lookout"); United States v. Pineda, 692 F. 2d 284, 288 (2^nd Cir. 1982).

24. Pineda, 692 F.2d at 288.

25. ²¹ Bender, 221 F.3d at 271.

26. ²² United States v. Kidd, 12 F.3d 30, 32-34 (4^th Cir. 1993), cert. denied, 511 U.S. 1059 (1994).

27. ²³ Id. at 31.

28. ²⁴ Id. at 32.

29. ²⁵ Id.

30. ²⁶ Id. at 33 n. 2.

31. ²⁷ Id. at 33. But see Jackson v. State, 643 A.2d 1360, 1374 (Del. 1994), cert. denied, 513 U.S. 1136 (1995)(disagreeing with Kidd's holding that extraneous offenses, so obtained, are admissible at sentencing).

32. ²⁸ Id.