Bailey, Lajuan Cecile

• Court: Court of Appeals of Texas
• Decided: September 22, 2015
• Docket: PD-1087-15
• Status: Published

Opinion

PD-1087-15 COURT OF CRIMINAL APPEALS AUSTIN, TEXAS Transmitted 9/21/2015 2:26:18 PM Accepted 9/22/2015 1:11:10 PM PD-1087-15 ABEL ACOSTA CLERK

IN THE COURT OF CRIMINAL APPEALS OF THE STATE OF TEXAS

LAJUAN CECILE BAILEY Petitioner/Appellant

v.

THE STATE OF TEXAS Respondent/Appellee

On Petition for Discretionary Review from the Fourteenth Court of Appeals in Cause No. 01-12-00200-CR, affirming the conviction in Cause Number 1298261 from the 174th District Court of Harris County

PETITION FOR DISCRETIONARY REVIEW

ORAL ARGUMENT NOT REQUESTED ALEXANDER BUNIN Chief Public Defender Harris County, Texas

ANGELA CAMERON Assistant Public Defender Harris County, Texas Texas Bar No. 00788672 1201 Franklin, 13th Floor Houston, Texas 77002 Phone: (713) 368-0016 Fax: (713) 368-9278 September 22, 2015 angela.cameron@pdo.hctx.net

Counsel for Appellant IDENTITY OF PARTIES AND COUNSEL

APPELLANT: Ms. Lajuan Bailey 7723 Secretariat Houston, Texas 77071

PRESIDING JUDGE: Hon. Ruben Guerrero 174th District Court Harris County, Texas 1201 Franklin Avenue, 19th floor Houston, Texas 77002

TRIAL PROSECUTOR: Mr. John Brewer APPELLATE PROSECUTOR: Mr. Alan Curry Assistant District Attorneys Harris County, Texas 1201 Franklin Avenue, 6th floor Houston, Texas 77002

DEFENSE COUNSEL AT TRIAL: Mr. Jeffrey Sasser 720 Bayland Houston, Texas 77009

DEFENSE COUNSEL ON APPEAL: Ms. Angela Cameron Assistant Public Defender Harris County, Texas 1201 Franklin Avenue, 13th floor Houston, Texas 77002

ii TABLE OF CONTENTS

Identity of Parties and Counsel..............................................................................................ii

Table of Contents ...................................................................................................................iii

Index of Authorities ............................................................................................................... v

Statement Regarding Oral Argument................................................................................... 1

Statement of the Case ............................................................................................................ 1

Statement of Procedural History .......................................................................................... 1

Grounds for Review............................................................................................................... 2

Reasons for Review ................................................................................................................ 2

Statement of Facts .................................................................................................................. 3

Argument ................................................................................................................................. 5

The attorney-client privilege belongs to the client and may not be waived without the client’s consent. Appellant expressly waived attorney-client privilege but limited the waiver to one extraneous offense. Trial counsel questioned Appellant’s previous counsel regarding privileged communications concerning a second extraneous offense without Appellant’s consent.

Did the Court of Appeals err in determining trial counsel’s disclosure was not ineffective assistance of counsel, but instead was an “implied waiver?”

Does implied waiver under the “offensive use” doctrine apply to the general defense of reasonable excuse provided for in Tex. Pen. Code §38.10?

Can implied waiver under Tex. R. Evid. 511 trump Appellant’s expressed and specific limitation on the waiver of her attorney-client privilege?

Did the Court of Appeals improperly shift the burden to Appellant to prove she did not waiver her attorney-client privilege?

iii The Court of Appeals’ Holding ..................................................................... 5 Waiver of Attorney Client Privilege .............................................................. 6 Sword v. Shield or “offensive use” doctrine .................................... 6 Tex. R. Evid. 511 ................................................................................. 9 Court of Appeals improperly placed burden on Appellant ..................... 10 No reasonable attorney ................................................................................. 11

PRAYER .................................................................................................................................. 12

CERTIFICATE OF SERVICE .................................................................................................... 12

CERTIFICATE OF COMPLIANCE ........................................................................................... 13

APPENDIX .............................................................................................................................. 14

iv INDEX OF AUTHORITIES

Cases

Austin v. State, 934 S.W.2d 672 (Tex. Crim. App. 1996) ................................................................. 3

Bailey v. State, -- S.W.3d -- , No. 01-12-00200-CR, 2015 WL 4497773 (Tex. App. – Houston [1st Dist.] July 23, 2015, no. pet. h). ............................................ passim

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

Carmona v. State, 947 S.W.2d 661 (Tex. App. – Austin 1997, no pet.) .......................................... 9

Cruz v. State, 586 S.W.2d 861 (Tex. Crim. App. [Panel Op.] 1979)...................................... 2, 6, 9

Johnson v. State, 120 S.W.3d 10 (Tex. App. – Amarillo 2003) aff'd 169 S.W.3d 223 (Tex. Crim. App. 2005) ............................................................................11

Marathon Oil Co. v. Moye, 893 S.W.2d 585 (Tex. App. – Dallas 1994, no writ) ............................ 8

Republic Ins. Co. v. Davis, 856 S.W.2d 158 (Tex. 1993) .................................................................7, 8

Ryser v. State, 453 S.W.3d 17, 30 (Tex. App. – Houston [1st Dist.] 2014, pet. ref’d) ................... 8

Statutes

Tex. Pen. Code §2.03 .......................................................................................................................... 8

Tex. Pen. Code §38.10 ....................................................................................................... 1, 2, 5, 6, 8

Rules

Tex. R. App. 66.3(b). ................................................................................................................ 2, 8, 10

Tex. R. App. P. 66.3(c) .......................................................................................................... 2, 10, 11

Tex. R. Evid. 511 .................................................................................................................... 2, 5, 6, 9

v STATEMENT REGARDING ORAL ARGUMENT

Oral argument is not requested.

STATEMENT OF THE CASE

Ms. Bailey was charged with bail jumping and failure to appear (C.R. at 2). See

Tex. Pen. Code §38.10. Bailey entered a plea of “not guilty.” (3 R.R. at 6). After a jury

trial, Bailey was found guilty and sentenced by a jury to ten (10) years imprisonment in

the Texas Department of Corrections – Institutional Division and a fine of $10,000

(C.R. at 58). Timely notice of appeal was filed (C.R. at 62). No Motion for New Trial

was filed. Appellant counsel was appointed more than eight months after Bailey was

sentenced (Supp. C.R. at 2).

STATEMENT OF PROCEDURAL HISTORY

On October 7, 2015, in a published opinion, a panel of the First Court of Appeals

affirmed Ms. Bailey’s conviction. Bailey moved for en banc consideration which the

Court granted. On July 23, 2015, in a published opinion the majority of the court

affirmed Bailey’s conviction. Chief Justice Radack authored a published dissent which

was joined by three other justices. Bailey v. State, -- S.W.3d.--, No. 01-12-00200-CR, 2015

WL 4497773 (Tex. App. – Houston [1st Dist.], July 23, 2015). After an extension of

time, this petition is timely if filed on or before September 23, 2015.

1 GROUNDS FOR REVIEW

The attorney-client privilege belongs to the client and may not be waived without the client’s consent. Appellant expressly waived attorney-client privilege but limited the waiver to one extraneous offense. Trial counsel questioned Appellant’s previous counsel regarding privileged communications concerning a second extraneous offense without Appellant’s consent.

Did the Court of Appeals err in determining trial counsel’s disclosure was not ineffective assistance of counsel but instead an “implied waiver?”

Does implied waiver under the “offensive use” doctrine apply to the general defense of reasonable excuse provided for in Tex. Pen. Code §38.10?

Can implied waiver under Tex. R. Evid. 511 trump Appellant’s expressed and specific limitation on the waiver of her attorney-client privilege?

Did the Court of Appeals improperly shift the burden to Appellant to prove she did not waiver her attorney-client privilege?

REASON FOR REVIEW

The First Court of Appeals has decided an important question of state law that has not been, but should be settled by the Court of Criminal Appeals. Tex. R. App. P. 66.3(b).

The First Court of Appeals has decided an important question of state law in a way that conflicts with this Court’s decision in Carmona v. State, 941 S.W.2d 949 (Tex. Crim. App. 1997) and Cruz v. State, 586 S.W.2d 861 (Tex. Crim. App. [Panel Op. 1979). Tex. R. App. P. 66.3(c).

2 STATEMENT OF FACTS RELATIVE TO GROUNDS RAISED

Ms. Bailey was on bond pending trial for fraudulent use or possession of

identifying information in both Harris and Jefferson counties and was represented by

Brian Roberts on both cases (C.R. at 2) (5 R.R. at 27). Bailey was scheduled to appear

in the Harris County court on September 21, 2010 (3 R.R. at 57-58). However on

September 8, 2010, the trial court revoked Bailey’s bond based on a new charge being

filed against Bailey in Brazoria County. Bailey v. State, -- S.W.3d -- No. 01-12-00200-CR,

2015 WL 4497773, 1 (Tex. App. — Houston [1st Dist.] July 23, 2015, no. pet. h). Bailey

did not appear for the September 21, 2010 court date, which resulted in the indictment

in this case being filed (3 R.R. at 58) (C.R. at 2).

At trial, the State called Roberts for the purpose of testifying regarding his

communications with Bailey about the September 21, 2010 court date pursuant to the

rule pronounced in Austin v. State, 934 S.W.2d 672 (Tex. Crim. App. 1996). (3 R.R. at 3-

5) (4 R.R. at 31). Roberts testified he talked with Bailey on September 2, 2010 and

advised her of the new court date (4 R.R. at 31).

Early in the cross-examination of Roberts, the parties approached regarding

Bailey’s attorney-client privilege and Roberts’ ability to answer trial counsel’s questions.

(4 R.R. at 39). Trial counsel stated he intended to ask Roberts about communications

between Roberts and Bailey regarding warrants “from Brazoria County. Not from

Jefferson County, not from Beaumont” (4 R.R. at 39). In an abundance of caution,

Bailey was questioned regarding waiving her attorney-client privilege. At that time she

3 specifically stated that she was waiving the privilege as to the Brazoria County case but

only that and nothing else, “not anything subsequent or after the fact” (4 R.R. at 40-

42).

Despite this expressed limitation, trial counsel questioned Roberts regarding

Bailey’s Jefferson County case and at one point specifically told Roberts not to “worry

about the attorney-client. Everything has been waived at this point.” (4 R.R. at 60). A

short time later, when the State asked the court to verify from Bailey that trial counsel

was correct when he stated she waived her privilege as to Jefferson County (4 R.R. at

88). Ms. Bailey testified she had not waived privilege stating:

The Defendant: Am I allowed – I do have a problem. I was very specific in saying that I wanted to stick to the Brazoria County charge. I was very, very specific in the very beginning. And I don’t know if I can stand up and object to something because I’ve never gone to trial before, which is why I was very specific about it in the first place. And because I do know, like he argued –

(4 R.R. at 89). The court interrupted Bailey stating it understood and stated the door

had been opened to both cases. A discussion between the attorneys continued as to

whether Bailey had waived the privilege during which trial counsel responded as

follows:

Mr. Sasser: It’s true we were talking during questioning, but in fairness to my client, she did – she did write a note here: We can deal with this without bringing in Jefferson County. Just in response to John’s [the prosecutor] comment, she did write that down. I am her attorney and I did say that, but I think Mr. Roberts is right, I don’t think I can – I don’t think I can waive her privilege. I think she has to do that. By me stating that, I certainly think I overstepped my bounds on that by –

4 (4 R.R. at 91). The discussion between the court and attorneys continued. Ultimately,

the trial court ruled Bailey waived her privilege and the court recessed for the day

without further testimony. (4 R.R. at 95-96). The next morning trial counsel moved for

a mistrial “because of the privileged communications that came in to the jury” (5 R.R.

at 4).

ARGUMENT

The attorney-client privilege belongs to the client and may not be waived without the client’s consent. Appellant expressly waived attorney-client privilege but limited the waiver to one extraneous offense. Trial counsel questioned Appellant’s previous counsel regarding privileged communications concerning a second extraneous offense without Appellant’s consent.

Did the Court of Appeals err in determining trial counsel’s disclosure was not ineffective assistance of counsel but instead was an “implied waiver?”

Does implied waiver under the “offensive use” doctrine apply to the general defense of reasonable excuse provided for in Tex. Pen. Code §38.10?

Can implied waiver under Tex. R. Evid. 511 trump Appellant’s expressed limitation on the waiver of her attorney-client privilege?

Did the Court of Appeals improperly shift the burden to Appellant to prove she did not waiver her attorney-client privilege?

The Court of Appeals’ Holding

The Court of Appeals held trial counsel was not ineffective for questioning

Bailey’s prior counsel regarding attorney client communications regarding Bailey’s

pending Jefferson County case because 5 …by pursuing a strategy and persistently arguing that she had a reasonable excuse for her failure to appear based on her communications with her lawyer, Bailey did place all her communications with Roberts relevant to that particular subject at issue. This understanding of the challenged line of questions is essentially conceded on page 4 of the appellant's brief, which concedes: “As part of her reasonable explanation defense, Bailey consented to waiver of the privilege regarding a charge in Brazoria County.” Despite the self-serving limitations stated as part of Bailey's express consent, by asserting the [reasonable excuse] defense she necessarily consented to waiver of all the related and interwoven communications, including those about the importance of appearing in Jefferson County. Bailey v. State, --S.W.3d--, No. 01-12-00200-CR, 2015 WL 4497773, 11 (Tex. App. –

Houston [1st Dist.], July 23, 2015).

Waiver of Attorney Client Privilege

Attorney client privilege “is personal to the client and cannot be waived solely

by the attorney.” Cruz v. State, 586 S.W.2d 861, 865 (Tex. Crim. App. 1979). The

majority’s holding disregards this fact when it declares Bailey impliedly waived her

privilege when both counsel and Bailey testified otherwise. The majority’s holding is

based on intertwining of the “offensive use” doctrine, often referred to as using the

privilege as both a sword and a shield, and Tex. R. Evid. 511.

Sword v. Shield or “offensive use” doctrine

Despite Bailey’s expressed limitations, the majority found Bailey impliedly waiver

the privilege because it believed Bailey used the attorney client privilege offensively

when she availed herself of the statutory defense of reasonable excuse found in Tex.

Pen. Code 38.10. The majority’s opinion characterizes Bailey’s defense as being

“substantially predicated on her reliance on the counsel she claimed she received from

6 her attorney” and thus relies on the body of case law which finds attorney-client

privilege waived when counsel has been attacked. Bailey at 10. The dissent correctly

points out, however, that prior to the cross-examination of Roberts there is no evidence

that Roberts’ advice was the basis of Bailey’s belief she was excused from appearing on

the assigned court date. Bailey at 13.

More importantly, however is whether or not the “offensive waiver” doctrine

even applies in this case and if so, what is the appropriate test. The majority states “a

privilege cannot be used simultaneously as a shield and a sword after a partial disclosure

is used as a sword to gain litigation advantage” Bailey at 9. The undersigned has not

found a case from this Court applying the doctrine to attorney-client privilege or

whether or not availing oneself of a statutory general defense constitutes using the

privilege as a sword. The majority of cases applying the offensive use doctrine to the

attorney-client privilege are civil cases involving discovery disputes. These cases are

instructive.

In Republic Ins. Co. v. Davis, the Texas Supreme Court fashioned a three prong

test to determine in the holder of the privilege in fact utilized the privilege as sword.

Before waiver may be found under the doctrine

First ….the privilege must seek affirmative relief. Second, the privileged information sought must be such that, if believed by the fact finder, in all probability it would be outcome determinative of the cause of action asserted. Mere relevance is insufficient. A contradiction in position without more is insufficient. The confidential communication must go to the very heart of the affirmative relief sought. Third, disclosure of the confidential communication must be the only means by which the

7 aggrieved party may obtain the evidence. If any one of these requirements is lacking, the trial court must uphold the privilege.

Republic Ins. Co. v. Davis, 856 S.W.2d 158, 163 (Tex. 1993) (internal citations omitted).

The reasonable excuse defense to bail jumping is found in Tex. Pen. Code

§38.10(c) which begins with the language “[i]t is a defense to prosecution.” Tex. Pen.

Code §2.03(a) provides defenses so labeled are general defenses. The effect of a general

defense being raised merely “fixes the burden of proof on the State to prove every

element of the offense, including disproving the justification defense.” Ryser v. State,

453 S.W.3d 17, 30 (Tex. App. – Houston [1st Dist.] 2014, pet. ref’d). Thus Bailey’s use

of the reasonable excuse defense does not seek affirmative relief and as such the

requirements to find waiver under the offensive use doctrine have not been met. See

Marathon Oil Co. v. Moye, 893 S.W.2d 585, 590 (Tex. App. – Dallas 1994, no writ)

(“[w]hen a defendant relies on privileged information to rebut a plaintiff's cause of

action, the defendant is not seeking affirmative relief that is an offensive use of the

privilege). Appellant would urge this Court to adopt Davis’ “affirmative relief” test as

opposed to the “gain litigation advantage” language utilized by the majority opinion and

find the reasonable excuse defense is not affirmative relief. Because this is an important

issue of state law that this Court has not addressed review should be granted. Tex. R.

App. 66.3(b).

8 Tex. R. Evid. 511

Tex. R. Evid. 511 provides that privilege may be waived through the disclosure

of any significant part of the privileged matter. Tex. R. Evid. 511(1). However, the rule

also requires the disclosure must be voluntary or consented to by the privilege holder.

There is no evidence that Bailey voluntarily agreed to trial counsel’s disclosure regarding

the Jefferson County case. Furthermore, as the dissent points out, the cases holding a

defendant acquiesced to the attorney’s waiver involve situations where the defendant

was silent. That is not the case here. On numerous occasions Bailey specifically limited

the extent of her waiver to the Brazoria County case only. As noted by the dissent,

Bailey “did everything but stand up in open court and disrupt the court proceedings in

an attempt to preserve her attorney-client privilege.” Bailey at 13.

Despite Bailey’s attempts, the majority however found Bailey’s consent to

disclose information regarding the Brazoria County case “was itself sufficient to waive

privilege” Bailey at 10-11. Waiver is not to be “lightly inferred.” Cruz v. State, 586

S.W.2d 861, 865 (Tex. Crim. App. [Panel Op.] 1979). As acknowledged by the majority

“implied waivers are consistently construed narrowly”. Bailey at 11. Yet the court

determined the communications regarding the Jefferson County case were “related and

relevant interwoven communications” and part of the “broader context of [Roberts’]

representation.” The majority reliance on Carmona v. State, 947 S.W.2d 661 (Tex. App.

– Austin 1997, no pet.) to support its position is misplaced as Carmona is distinguishable.

In Carmona, the question was whether the interview before a polygraph was given was

9 so intertwined as to imply waiver of the pre-test interview when Carmona voluntarily

disclosed the polygraph results. Carmona involved one transaction – the giving of a

polygraph. The pretest interview was given immediately prior to the polygraph and as

the dissent points out – both interview and test concerned the same offense. That is

not the case here. Bailey was facing two separate offenses – one in Jefferson and one

in Harris County.

In essence the court is holding implied waiver trumps express denial. This is

akin to saying a woman who consents to a date and kiss impliedly consents to

intercourse despite specifically saying no. This cannot be. This flies in the face of this

Court’s disfavor with inferring waiver and review should be granted to determine this

important issue of state law. Tex. R. App. Proc. 66.3(b) & (c).

Court of Appeals improperly places burden on Appellant

The Court of Appeals impermissibly shifted the burden of proof to Bailey to

show she did not consent to the waiver as opposed to requiring the State to affirmatively

prove waiver. In Carmona v. State, 941 S.W.2d 949, 953 (Tex. Crim. App. 1997), this

Court held “the party seeking to benefit from a finding of waiver has the burden to

provide evidence that supports a finding of waiver.” Here it is the State seeking a

finding of waiver and as such the State has the burden of proof. However, the

majority’s opinion specifically states the trial court did not abuse its discretion in finding

implied waiver because “[t]he record does not provide a firm foundation to

affirmatively establish that confidential communications were elicited without Bailey’s

10 actual consent, as the record is conflicted on that subject.” Bailey at 12. The proper

question is whether the State proved waiver, not whether Bailey proved lack of consent.

As the majority opinion is in conflict with this Court’s opinion in Carmona, review

should be granted. Tex. R. App. Proc. 66.3(c).

No reasonable attorney

The Court of Appeals erred in finding implied waiver. Without a finding that

Bailey’s conduct impliedly waived attorney-client communications regarding Jefferson

County, Bailey’s attorney-client privilege was violated by trial counsel. Trial counsel

admirably confessed his error by stating he got caught up in the heat of battle and

overstepped his boundaries. This admission by counsel belies any suggestion that

counsel had a strategy to question Roberts’ regarding Jefferson County. Nonetheless,

even if it was counsel’s strategy, the strategy must yield to the client’s decision. Just as

“the law is clear that trial strategy must take a back seat to the exercise of the defendant's

constitutional right to take the stand in his own defense,” so too should strategy take a

back seat to the client’s desire whether to waive privilege. Johnson v. State, 120 S.W.3d

10, 18 (Tex. App. Amarillo 2003) aff'd, 169 S.W.3d 223 (Tex. Crim. App. 2005).

Because there was no implied waiver of privilege and no reasonable attorney would

violate attorney-client privilege without the client’s consent and counsel’s actions

resulted in the admission of evidence which destroyed Bailey’s only defense, Bailey was

denied effective assistance of counsel. The Court of Appeals erred in finding otherwise.

11 PRAYER

For these reasons, Ms. Bailey prays this Court to grant discretionary review.

Respectfully submitted,

ALEXANDER BUNIN Chief Public Defender Harris County Texas

/s/ Angela Cameron ANGELA CAMERON Assistant Public Defender 1201 Franklin, 13th floor Houston Texas 77002 (713) 368-0016 TBA No. 00788672 email: angela.cameron@pdo.hctx.net

CERTIFICATE OF SERVICE

I certify that I provided a copy of the foregoing petition to the Harris County District

Attorney and the State Prosecuting Attorney via e-filing service on the 21st day of

September 2015.

/s/ Angela Cameron ANGELA CAMERON

12 CERTIFICATE OF COMPLIANCE

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

with the type-volume limitations of Tex. R. App. Proc. 9.4(e)(i).

1. This petition for discretionary review contains 3,689 words printed in a

proportionally spaced typeface.

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

14 point font in text and Garamond 12 point font in footnotes produced by Microsoft

Word software.

3. Upon request, undersigned counsel will provide an electronic version of this brief

and/or a copy of the word printout to the Court.

4. 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.

/s/ Angela Cameron ANGELA L. CAMERON

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

Right of Defendant to Counsel 2015 WL 4497773 The constitutional right to counsel in a criminal Only the Westlaw citation is currently available. prosecution exists to protect the fundamental right to a fair trial. U.S. Const.Amend. 6. NOTICE: THIS OPINION HAS NOT BEEN RELEASED FOR PUBLICATION IN THE Cases that cite this headnote PERMANENT LAW REPORTS. UNTIL RELEASED, IT IS SUBJECT TO REVISION OR WITHDRAWAL. [2] Criminal Law Requisites of fair trial Court of Appeals of Texas, Houston (1st Dist.). In context of a criminal trial, a fair trial is one in which evidence subject to adversarial testing is Lajuan Cecile Bailey, Appellant presented to an impartial tribunal for resolution v. of issues defined in advance of the proceeding. The State of Texas, Appellee U.S. Const. Amend. 6.

NO. 01–12–00200–CR | Opinion on Cases that cite this headnote en banc reconsideration issued July 23, 2015 [3] Criminal Law Synopsis Prejudice in general Background: Defendant was convicted in a jury trial in the 174th District Court, Harris County, Ruben Guerrero, J., of The benchmark for judging any claim of failure to appear as required for a pretrial hearing. Defendant ineffective assistance must be whether counsel's appealed. conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result. U.S. Const.Amend. 6. Holdings: On motion for en banc reconsideration, the Court of Appeals, Michael Massengale, J., held that: Cases that cite this headnote

[1] defendant's reasonable excuse defense based on her [4] Criminal Law former defense counsel's alleged failure to advise her of Standard of Effective Assistance in General pretrial hearing served to waive the attorney-client privilege The right to effective counsel does not mean as to communications relating to the representation as a errorless or perfect counsel whose competency whole, and of representation is to be judged by hindsight. U.S. Const.Amend. 6. [2] former defense counsel's testimony divulging otherwise privileged communication did not necessitate declaration of Cases that cite this headnote mistrial given defendant's waiver.

[5] Criminal Law Affirmed. Determination An appellate court looks to the totality of the Radack, J., issued dissenting opinion in which Jennings, representation and the particular circumstances Keyes, and Higley, JJ., joined. of each case in evaluating the effectiveness of counsel. U.S. Const.Amend. 6.

Cases that cite this headnote West Headnotes (23)

[6] Criminal Law [1] Criminal Law

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 1 Bailey v. State, --- S.W.3d ---- (2015)

Deficient representation in general affirmatively demonstrate the meritorious nature The adequacy of attorney performance, for of the claim. U.S. Const. Amend. 6. purposes of reviewing a claim alleging Cases that cite this headnote ineffective assistance, is judged against what is reasonable considering prevailing professional norms. U.S. Const.Amend. 6. [11] Privileged Communications and Confidentiality Cases that cite this headnote Waiver of privilege Privileged Communications and [7] Criminal Law Confidentiality Presumptions and burden of proof in Presumptions and burden of proof general The mere disclosure of privileged materials by Criminal Law a defendant's lawyer, by itself, does not give Strategy and tactics in general rise to a presumption of waiver of the attorney- There is a strong presumption that, considering client privilege; nevertheless, the totality of the circumstances, a lawyer's choices were the circumstances and reasonable inferences reasonably professional and motivated by sound therefrom may support a finding of waiver. U.S. trial strategy, for purposes of reviewing a Const. Amend. 6. claim alleging ineffective assistance. U.S. Const. Cases that cite this headnote Amend. 6.

Cases that cite this headnote [12] Privileged Communications and Confidentiality [8] Criminal Law Waiver of privilege Presumptions and burden of proof in Consistent with privilege rule's general acknowledgement that consent to disclosure of In order to rebut presumption of effective any significant part of a privileged matter may assistance, a criminal defendant has the burden constitute waiver of the whole, a privilege may of showing by a preponderance of the evidence not be waived selectively to disclose only such that his attorney failed to provide constitutionally evidence as may be beneficial to the party adequate representation. U.S. Const. Amend. 6. holding the privilege. Tex. R. Evid. 511.

Cases that cite this headnote Cases that cite this headnote

[9] Criminal Law [13] Privileged Communications and Conduct of Trial in General Confidentiality Offensive use doctrine Limitations of the record often render a direct appeal inadequate to raise a claim of ineffective A privilege cannot be used simultaneously as assistance of counsel. U.S. Const. Amend. 6. a shield and a sword; after a partial disclosure is used as a sword to gain litigation advantage, Cases that cite this headnote the privilege cannot then be used to shield the remainder of the privileged communication. Tex. R. Evid. 511. [10] Criminal Law Conduct of Trial in General Cases that cite this headnote An ineffective assistance claim must be firmly founded in the record and the record must [14] Privileged Communications and Confidentiality

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 2 Bailey v. State, --- S.W.3d ---- (2015)

Waiver of privilege former counsel actually had documented his With specific reference to the attorney- significant efforts to inform and advise defendant client communication privilege, it may be about the consequences of a failure to appear. implicitly waived by raising issues regarding Tex. R. Evid. 511(1). the performance of counsel, particularly if an Cases that cite this headnote issue is injected into the case which requires the attorney's testimony. Tex. R. Evid. 511. [17] Privileged Communications and Cases that cite this headnote Confidentiality Waiver of privilege [15] Privileged Communications and Implied waivers of privileges are consistently Confidentiality construed narrowly. Waiver of privilege Cases that cite this headnote The scope of an implied waiver of the attorney-client privilege is a legal question to be determined under the rules of evidence, [18] Privileged Communications and and thus it is not necessarily defined by Confidentiality the client's own articulation of the scope of Waiver of privilege privilege she intends to waive while at the Courts must impose a waiver of a privilege no same time authorizing disclosure of privileged broader than needed to ensure the fairness of the communications considered helpful to her. Tex. proceedings before it. R. Evid. 511. Cases that cite this headnote Cases that cite this headnote

[19] Privileged Communications and [16] Privileged Communications and Confidentiality Confidentiality Waiver of privilege Waiver of privilege A broad waiver of privilege rule would no In the course of presenting the statutory doubt inhibit the kind of frank attorney-client defense of reasonable excuse for her failure communications and vigorous investigation of to appear at a pretrial hearing in criminal all possible defenses that the attorney-client and proceedings, defendant expressly waived the work product privileges are designed to promote. attorney-client privilege as to a significant part of her communications with her former Cases that cite this headnote defense counsel, the legal effect of which could not be limited selectively to only [20] Criminal Law those communications that were helpful to Privilege the defense and instead extended to all other Like other evidentiary rulings, a trial court's related attorney communications which were ruling determining that a privilege has been relevant to the defense and thereby, in fairness, waived is reviewed for abuse of discretion, is became admissible when defendant injected upheld when it is within the zone of reasonable those communications into the case; defendant's disagreement, and may not be reversed solely apparent desire to exclude evidence about because the appellate court disagrees with the communications relating to one case constituted decision. an assertion of the privilege as a shield against the use of what turned out to be prejudicial Cases that cite this headnote information divulged as part of the broader context of the representation, which was that

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[21] Criminal Law Determination OPINION ON EN BANC RECONSIDERATION * Trial counsel should ordinarily be afforded an opportunity to explain his actions before being * We grant appellant's motion for en banc reconsideration, denounced as ineffective. U.S. Const. Amend. 6. withdraw our opinion of October 7, 2014, vacate our judgment of the same date, and issue this en banc opinion Cases that cite this headnote and judgment in their stead. See TEX.R.APP. P. 49.7.

[22] Criminal Law Michael Massengale, Justice Counsel *1 A jury convicted appellant Lajuan Cecile Bailey of Former defense counsel's disclosure of failure to appear as required for a pretrial hearing. See TEX. privileged information did not necessitate PENAL CODE ANN. § 38.10. It assessed punishment at 10 declaration of mistrial, in prosecution for failure years' confinement and a $10,000 fine. See id. § 12.34. to appear as required for a pretrial hearing, as the privilege already had been waived before the It was undisputed that Bailey failed to appear as required for line of questions that gave rise to defendant's a pretrial hearing, and her trial strategy was to invoke the motion for mistrial, and the testimony of which statutory defense available when “the actor had a reasonable defendant complained was introduced by her excuse” for her failure to appear in accordance with the own attorney. terms of her release. See id. § 38.10(c). She affirmatively Cases that cite this headnote introduced evidence of communications with her lawyer in an attempt to establish her excuse that the lawyer failed to tell her that she had to appear—indeed, there was no conceivable [23] Criminal Law other purpose for cross-examining her attorney. That was Admission of evidence a plausible trial strategy, which entailed an implied waiver A defendant may not complain of evidence of the attorney-client privilege because it placed in issue all elicited by her own attorney. of her communications with her lawyer about the need to actually appear for hearings as required by the court. Cases that cite this headnote

Bailey now contends that she received ineffective assistance of counsel at trial. In the face of a disputed factual record and without the benefit of a post-trial evidentiary On Appeal from the 174th District Court, Harris County, hearing, she claims that her trial counsel divulged privileged Texas, Trial Court Case No. 1298261; Ruben Guerrero, communications without authorization. To establish such Judge a claim on direct appeal, an affirmative demonstration of deficient attorney performance and resulting harm must be Attorneys and Law Firms firmly founded in the record. Although Bailey contends that Angela L. Cameron, Assistant Public Defender, Houston, TX, she did not consent to the waiver of privilege in connection for Appellant. with her trial counsel's cross-examination of her former lawyer, the trial judge expressly found that such a waiver in Devon Anderson, District Attorney, Alan Curry, Donald W. fact had occurred. That evidentiary ruling is supported by the Rogers, Jr., Assistant District Attorney, Houston, TX, for record. Appellee. We hold that the trial court did not abuse its discretion to Panel consisted of Chief Justice Radack and Justices conclude that in the course of presenting the statutory defense Massengale and Huddle. of reasonable excuse, Bailey expressly waived privilege as to a significant part of her communications with her attorney, and the legal effect of the waiver could not be limited

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selectively to only those communications that were helpful to Jefferson County. In both cases, she was released from the defense. As a matter of law, the waiver also extended to all custody on bond pending trial. other related attorney communications which were relevant to the defense and thereby, in fairness, became admissible when 3 See Act of May 22, 2007, 80th Leg., R.S., eh. 631, § 1, Bailey injected those communications into the case. Because sec. 32.51, 2007 Tex. Gen. Laws 1204; Act of May 26, Bailey does not argue and the record does not reveal any other 2007, 80th Leg., R.S., eh. 1163, § 1, sec. 32.51, 2007 Tex. plausible strategy to defend the charge of failure to appear, Gen. Laws 3991, 3992; Act of May 25, 2007, 80th Leg., there also has been no demonstration of harm. R.S., ch. 1173, §§ 1–3, sec. 32.51, 2007 Tex. Gen. Laws 4012 (current version at TEX. PENAL CODE § 32.51). Bailey also contends that the trial court erred in overruling her motion for mistrial based on the disclosure of her A. Circumstances of failure to appear attorney-client communications. The trial court acted within Bailey hired attorney Brian Roberts to defend her in both its discretion to deny the mistrial because the testimony of cases. A pretrial conference was scheduled to be held in which Bailey complains was introduced by her own attorney. Harris County on September 7, 2010. Fearing that the hearing would preclude him from attending a friend's funeral, Roberts We affirm the judgment. arranged to have the conference reset. On September 2, he informed Bailey that the hearing had been rescheduled to September 21.

Background On September 8, Bailey's bond was revoked in Harris County Our review of an ineffective-assistance claim on direct appeal because a new charge had been filed against her in Brazoria requires evaluation of allegedly deficient performance in County. A warrant had issued for Bailey's arrest on that context of the totality of the representation and in light of the charge, felon in possession of a firearm. See TEX. PENAL CODE § 46.04(a). entire record. 1 To the extent this appeal implicates the trial court's evidentiary determination that a privilege was waived, Bailey was scheduled to appear for a separate hearing in we owe “almost total deference” to an implied finding of any Jefferson County on September 15, 2010. She did not appear. facts that would support the ruling and would be supported Her Jefferson County bond was forfeited, a capias was issued, by the record, especially when such findings are based on an and Roberts withdrew from representing her in that case. On evaluation of credibility and demeanor. 2 September 21, she did not attend the rescheduled pretrial conference in Harris County. As a consequence, Roberts 1 See, e.g., Okonkwo v. State, 398 S.W.3d 689, 693 withdrew from representing her in the Harris County case as (Tex.Crim.App.2013) (appellate review focuses on the well, and the State charged Bailey with the offense of failure objective reasonableness of counsel's actual conduct to appear. “in light of the entire record”); Thompson v. State, 9 S.W.3d 808, 813 (Tex.Crim.App.1999) (“An appellate court looks to the totality of the representation and the B. Voir dire particular circumstances of each case in evaluating the While selecting the jury, defense counsel Jeffrey Sasser effectiveness of counsel.”). previewed Bailey's strategy of presenting a reasonable excuse 2 See, e.g., Johnson v. State, 414 S.W.3d 184, 192 for her failure to appear. Sasser stated: “The law for bail (Tex.Crim.App.2013); Cameron v. State, 241 S.W.3d jumping does allow a defense if someone had a reason, a 15, 19 (Tex.Crim.App.2007) (reviewing trial court's legitimate reason for not showing up.” He then asked the decision on the applicability of privilege as an venire panel whether there was “any reason” they could evidentiary ruling). imagine “someone might not show up for court,” eliciting *2 Lajuan Bailey was charged in 2009 with the felony responses that included “hospital,” “family emergency,” and offense of fraudulent use or possession of identifying “incarcerated.” Sasser then asked: “What about if they didn't know, would that be a legitimate reason?” One venireperson information in Harris County. 3 She was charged with a responded “No,” prompting Sasser to retort: “If they didn't separate instance of the same crime that same year in know they were supposed to come to court?” The transcript indicates the panel responded “in unison”: “No.” This line

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of discussion then ended after the trial judge sustained an Bailey also was excused from her obligation to the court objection from the State. to appear when required.

E. Evidence of Bailey's knowledge of the Harris County C. State's motion to compel court date At the beginning of trial testimony, the court held a hearing On the second day of testimony, the State called Roberts on the State's motion to compel the testimony of Bailey's to the stand, indicating that it intended to ask him about original defense attorney, Brian Roberts, as a witness to testily his representation of Bailey in the Jefferson County case. “about information regarding resets and information passed Defense attorney Sasser objected, arguing that any mention of on by the defense attorney from the Court to his client for Jefferson County and Bailey's failure to appear for trial in that purposes of showing up in court.” Roberts was present and case would be “highly prejudicial” and inadmissible under asserted his unwillingness to divulge information relating Rule 403. 5 The State argued that the evidence was admissible to a former client unless ordered to do so by the court. under Rule 404(b) in order to show motive or intent. The court The State argued that Roberts could be compelled to testily ruled that the Jefferson County case should not be discussed about his communication of court dates to Bailey, as the unless the defense “opened the door.” transmission of this information is exempt from the attorney- client communication privilege under the rule of Austin v. 5 Bailey does not claim on appeal that the injection State, 934 S.W.2d 672 (Tex.Crim.App.1996). The trial court of extraneous offense evidence constituted deficient agreed, granted the State's motion to compel, and ordered performance by her trial counsel. Accordingly, the Roberts to testify. dissent's repeated references to the disclosure of an extraneous offense miss the mark—they have nothing to do with Bailey's contention on appeal that her privilege D. Evidence of Bailey's failure to appear was violated. *3 The State called as witnesses Bailey's bail bondsman and several Harris County court employees, including the Accordingly, throughout direct examination the State district court coordinator. The State relied on these witnesses confined its questioning to the history of the Harris County to establish the basic facts supporting its case: Bailey was matter. Roberts testified about a series of resets in the Harris charged with a crime, she had been released on bond with the County case. He explained that he requested the final reset expectation that she appear in court when required, she was because a close friend had died and there was a risk the obligated to appear in court on September 21, and she did funeral would coincide with the hearing. He sent a lawyer not appear. The bail bondsman testified that he had spoken to with whom he shared office space, Chip Lewis, to obtain the Bailey on September 8, and that she told him “that there was reset. He further confirmed that he had telephoned Bailey on a reset, an off-docket reset.” The bondsman also made several September 2 and told her about the reset. subsequent attempts to communicate with Bailey between September 8 and the next court date on September 21, but F. Cross-examination of former attorney these were unsuccessful because she had moved and changed During cross-examination, Sasser initially asked questions her phone number. 4 critical of Roberts's handling of the reset. For example, he asked Roberts why he had sent another attorney to 4 The dissent makes special note of the bondsman Stim handle it and why he failed to consult with Bailey prior Bowie's testimony, characterizing it as demonstrating to rescheduling. Eventually, Sasser changed subjects to the that he believed, as Bailey claimed to believe, that Brazoria County charge. That subject had not been part of “the September 8 revocation of her bond excused her the State's direct examination, and the new line of defense from the obligation to appear on September 21.” This questioning prompted a renewed discussion of the attorney- mischaracterizes the testimony, in which Bowie agreed client privilege: only with defense counsel's suggestion that after the bond had been revoked, no other action was required of Bailey Sasser: Do you remember having—I know this is real “in that contract.” Bowie's agreement that Bailey owed touchy because of the attorney-client privilege. For no further performance with respect to her contract to purposes of my questioning, if I ask you a question that obtain a bail bond is not tantamount to agreement that invades attorney-client privilege, you can assume it's

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okay to answer. I've talked to my client about this. Okay? I want to go into specific conversations. I want to have The Court: All right. Anything further? my client— Prosecutor: Not unless Mr. Roberts has questions of his *4 Prosecutor: Judge, may we approach. prior client or has concerns.

(Emphasis supplied.) At the bench, the prosecutor then stated: Sasser: I think it's clear she waived the privilege at this “I think for Mr. Roberts's protection, he's worried about going point. I'm offering Mr. Roberts the opportunity if he into this and he needs to hear that from the client outside doesn't feel uncomfortable (sic) or doesn't need to make the presence of the jury so that Mr. Roberts is comfortable inquiries so we don't have to take the jury back out. that she is allowing him to answer the questions.” The judge Mr. Roberts, do you think that's adequate for the then excused the jury from the courtroom, and the discussion attorney-client privilege for you to answer the questions continued in Bailey's presence: unencumbered by attorney-client privilege you used to Sasser: Judge, at this time I anticipate asking Mr. Roberts have with Ms. Bailey? about communications that he had with my client Roberts: I didn't quite hear what it is she's waiving. I regarding the warrants that came up from Brazoria don't feel comfortable testifying to anything unless I hear County. Not from Jefferson County, not from Beaumont. directly from her the particular privileged conversations We already talked about this earlier, but the fact, you that she's waiving her privilege to. Are you waiving know, [the prosecutor] had come in here and gotten privilege— the bond revoked, she had these new cases in Brazoria County, I basically want to talk about the conversations Defendant: I'm only waiving privilege to the one case that he might have had with her about that and the fact— was filed against me in Brazoria County during this time because everything did not happen at the same time. Do The Court: You discussed these with your client? you understand what I'm saying? Sasser: Yes, sir, I have. Roberts: Correct. The Court: Alright. I will allow you to. Defendant: There's only one thing that changed during the Sasser: For my protection, may I get something on the whole time I was on bond, that is the only thing that I'm record from my client? talking about and referencing, not everything subsequent or after the fact. The Court: Any objection? Sasser: She had a gun case, the initial case filed in Brazoria Prosecutor: No, Judge. I think for Mr. Roberts, he needs to County, felony possession of a gun. That was the warrant hear it out of Ms. Bailey's mouth that she's waiving the [the prosecutor] came in and showed you. I would privilege between her and the attorney. assume. I wasn't here, Judge. She picked up this new case in Brazoria and you revoked her bond. Sasser: You just heard what I discussed with the judge. *5 Roberts: That's the only thing. Nothing else. I Defendant: Only on one case. That's the only case that was understand. because I had no other charges. There was only one case filed. Defendant: Just only that.

Sasser: Are you waiving the attorney-client privilege by (Emphasis supplied.) your prior attorney, Mr. Roberts, for me to question him regarding communications that you may have had In response to questioning by the defense, Roberts confirmed with him around September 2nd, 2010 regarding your that during the time leading up to the September 21, outstanding cases, the Brazoria cases? 2010 Harris County court date, Bailey had an “open warrant” stemming from the Brazoria County charge. Sasser Defendant: Yes, one case. probed the extent to which Roberts informed Bailey of the seriousness of the warrant and the need to present herself

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to authorities. He elicited testimony confirming that Roberts *6 When another discussion of the privilege ensued, the trial prepared the motion to withdraw in advance of the hearing court stated its understanding that “we have opened the door, because he knew that Bailey would not be coming to court, we have come into both the Jefferson County charges and the and explaining how he knew that. 6 As Sasser continued to Brazoria County charges, along with the charge here.” When probe the attorney-witness's communications with his former Bailey interjected that she “was very specific in saying that I client, he reassured him: “We'll get through this. It's all out wanted to stick to the Brazoria County charge,” the trial judge right now. The jury is going to hear about everything. Don't reiterated that “the door has been opened as to both charges” worry about the attorney-client. Everything has been waived and that the privilege had been waived. at this point.” (Emphasis supplied.) When trial resumed the next day, the parties continued to 6 debate the privilege issue in the context of defense motions for Under the pressures of a cross-examination that placed mistrial and, in the alternative, to strike the testimony relating his professionalism at issue, Roberts displayed an to the Jefferson County charges. Among other responses, admirable sensitivity to respecting his former client's privilege. When the questioning about his client the State argued that Bailey's privilege had been waived for communications first veered away from the Brazoria several reasons: County charges, it was Roberts who provoked a careful consideration of how the cross-examination was Number one, they were accusing unfolding. When asked how he knew that Bailey would Mr. Roberts of something, therefore, not be coming to court for a hearing in Harris County the privilege disappears so he can (such that it was recited in the written motion he had defend himself. Number two, it was brought with him to court on the date of the hearing as brought up by the defense as a a reason supporting his request to withdraw), Roberts contemplated part of their [reasonable- suggested that counsel “might want to approach” the mistake] defense. Number three, the bench. The ensuing bench conference yielded no clarity defendant did not assert her privilege with respect to the privilege, and Bailey's trial counsel after hearing her lawyer say: The asked the question again, specifically instructing the privilege is waived, go ahead and witness: “You can answer that.” Roberts sought guidance answer the question. And she very from the trial judge, who stated: “You may.” easily could have done that over the The exchange between defense attorney and former-attorney long period of time at some point, witness apparently became heated when Sasser asked Judge. 7 questions suggesting that Roberts, along with his office mate Lewis, had been demanding higher fees of Bailey in the wake The trial court denied the motion for mistrial and the motion of the Brazoria County charges. Roberts denied attempting to strike. to charge Bailey more for the cases he had been retained to handle in Jefferson and Harris Counties, and he also explained 7 The dissent suggests that the State never argued implied that his office mate, Lewis, did offer to defend her against the waiver. But as quoted above, the trial court initially fresh charges in Brazoria County for an additional fee. excluded testimony about the Jefferson County charge unless the defense “opened the door,” and the State did Sasser eventually asked Roberts whether he warned Bailey argue at trial, in support of the trial court's later waiver that she would be “making a huge mistake” by not appearing finding, that “it was brought up by the defense as a and forsaking the opportunity for plea bargains he had been contemplated part of their defense.” This response did negotiating. Roberts replied that on September 14 he had express, in general terms, the substance of the implied- emailed, texted, and called Bailey to advise her of what would waiver argument. Moreover, we “may uphold a trial happen if she did not appear for court in Jefferson County. court's ruling on any legal theory or basis applicable to the case.” Martinez v. State, 91 S.W.3d 331, 336 In response to Sasser's questions, Roberts revealed that he (Tex.Crim.App.2002); see also Winegarner v. State, 235 had expressly warned Bailey by email that her failure to S.W.3d 787, 790 (Tex.Crim.App.2007) (“as long as the appear in Jefferson County would likely result in a felony trial court's decision was within the zone of reasonable “bond jumping charge” and also “necessarily complicates disagreement and was correct under any theory of law your Harris County case.” applicable to the case, it must be upheld”).

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Sasser then continued his cross-examination of Roberts. He immediately and affirmatively elicited testimony that A. Because ... once retained and everything, the plan although Roberts had called, texted, and emailed Bailey was to do a non-arrest bond in Brazoria County. That the day before her scheduled appearance admonishing her would have alleviated any warrants, I wouldn't have had to appear in Jefferson County, he did not repeat these warrants in any counties, and I would have had a good communications in regard to Harris County. In phrasing his reputable person from Brazoria County to help me fight questions, Sasser emphasized that Bailey's bond had been the charge that was brought against me. revoked in Harris County prior to her scheduled appearance Defense counsel also asked Bailey to explain her failure to on September 21, whereas in Jefferson County, Bailey's bond appear in Jefferson County: had not been revoked prior to her failure to appear there on September 15. Q. Why did you not go to Beaumont when you were supposed to go? You said you had multiple reasons. You Later, during recross-examination, Sasser returned to the were talking about your first reason. substance of the communications about the Jefferson County case, and he asked Roberts to confirm that Bailey understood A. Okay. The first reason I had is because of my bond that if she had appeared at the hearing in Beaumont, she would being revoked in Harris County. I wasn't prepared for have been taken into custody. that. The second reason was because when speaking with my attorney at that time, when he—when Mr. Roberts said he sent me the e-mail, I didn't even get the e-mail. I G. Bailey's testimony was under the impression that our plan was to handle all Once the State rested, the defense called Bailey to the stand. of my cases at one time, and, you know, I guess to have She emphasized that she had not wanted to be taken into a plan for everything. custody on the Brazoria County warrants because she wanted the opportunity “to take care of everything” and have her “fair She thus testified that she did not appear in Jefferson County day in court.” She also discussed meetings in which Roberts's because she “wasn't prepared” for her bond revocation in office mate, Lewis, offered to defend her on the Brazoria Harris County, and she was under the “impression” that the County charge for $30,000. According to Bailey, in addition “plan” arranged with her attorney was to consolidate and to allowing Roberts to attend a funeral, the rescheduling of the resolve all of the pending charges. When Bailey was asked Harris County hearing also served the purpose of giving her why she did not appear in Harris County on September 21, “more time out there in the free world to get money together she answered, “Because according to the agreement I had on to give attorneys.” the bail agreement, my bond was revoked.” Bailey went on to explain that she had a background in real estate and was *7 After reviewing the substance of these discussions with familiar with contracts. attorneys Roberts and Lewis, defense counsel asked Bailey about her understanding of her general status at that time with Rather than relying on Bailey's own lay understanding of respect to her various pending criminal proceedings. Bailey's the implications of the revocation of bail to establish the response specifically addressed the outstanding warrants for reasonableness of her excuse, defense counsel then sought to her arrest: bolster the reasonableness of Bailey's understanding of her contract with the bonding company: Q. (By Mr. Sasser) Okay. So, after you left your meeting, that last meeting, the one that was right before the off- Q. (By Mr. Sasser) Well, what did you do when you found docket reset was done, did you feel like if you got this out it was revoked? Did you try to get an understanding money together that you would be able to stay out of of this agreement? custody and fight your cases like you had been out A. Yes, I did. before? Q. Who did you try to get that understanding from? A. Yes, I did. A. From my attorney, Mr. Roberts, and from the bonding Q. And why? company.

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H. Defense closing argument and judgment of conviction (Emphasis supplied.) Sasser thus argued that Bailey's course The jury charge contained an instruction on the defense of of conduct had been sanctioned by the attorneys she had reasonable excuse that specifically addressed Bailey's claim retained to manage her legal problems, emphasizing her that she had believed the revocation of her Harris County desire to remain free from custody so that she could gather bond on September 8 relieved her of the obligation to attend money to hire Lewis as her attorney in Brazoria County and court on September 21. See TEX. PENAL CODE § 38.10(c). consummate her plans with Roberts to resolve the Jefferson In his closing argument, Sasser admitted that Bailey had County and Harris County charges together. failed to appear but argued that the jury should acquit her because she had a reasonable excuse. He contrasted Bailey's The jury found Bailey guilty, and after a hearing on situation in Jefferson County, where her bond had not been punishment, imposed a fine of $10,000 and a prison sentence revoked, and her circumstances in Harris County, where bond of ten years. The judge entered judgment on the jury's verdict. had been revoked prior to her scheduled appearance. Bailey filed a notice of appeal and Sasser moved to withdraw.

*8 Sasser noted that Roberts had specifically warned Bailey to appear in Jefferson County, but he had not warned her Analysis about Harris County. He emphasized that in response to the charges pending against her in three different counties, Bailey Bailey argues that she received ineffective assistance of did “the one thing she knows to do, call her attorney, says: counsel and that the trial court erred by denying her motion Hey what do we do?” The thrust of this argument was that she for mistrial. reasonably placed her trust in Roberts to manage the situation, and that his failing rather than hers resulted in her failure to appear. Sasser argued: I. Ineffective assistance of counsel Bailey argues that she received ineffective assistance of We know he didn't send her anything else to say: Hey, counsel, but only based upon a portion of Sasser's cross- look you need to come to Houston. You need to come to examination which elicited testimony about attorney-client this court as well or else this could happen. We know that communications. The only examination alleged to be because he said he did not e-mail her anything. deficient was that which came before the trial judge ruled “the door has been opened” to questioning about Jefferson .... County. Bailey does not complain on appeal that Sasser The defendant testified and said she had conversations with rendered ineffective assistance by failing to explain the legal Mr. Roberts. And, basically, it was, you know, if you can implications of her express waiver of privilege, by opening get this money together, we can try to take care of your the door to evidence about the Jefferson County extraneous problems. And that's what she was trying to do. offense, by continuing his examination on that subject after the denial of a mistrial, or by arguing to the jury that she had .... a reasonable excuse based on her communications with her lawyer. ... She was trying to get a solution. She was counting on her attorneys at the time to help her out of—a helpless [1] [2] [3] [4] [5] The constitutional right to counsel situation, really, at the time; but in her mind, she was in a criminal prosecution exists to protect the fundamental thinking, maybe I can still stay out. I mean, as a defendant right to a fair trial. Strickland v. Washington, 466 U.S. 668, that's what you think. I don't want to be in jail. And she's 684, 104 S.Ct. 2052, 2063, 80 L.Ed.2d 674 (1984). In this thinking, if I can get this money together like my attorneys context, “a fair trial is one in which evidence subject to told me, they can take care of all this stuff. By the way, adversarial testing is presented to an impartial tribunal for my bondsmen already told me my bond is revoked in the resolution of issues defined in advance of the proceeding.” Id. court. My attorneys already told me my bond is revoked in at 685, 104 S.Ct. at 2063. “The benchmark for judging any the court. There's no consequence. If I don't go to court, claim of ineffectiveness must be whether counsel's conduct I'm just going to get my affairs in order, try to get money so undermined the proper functioning of the adversarial together, get all cases consolidated, taken care of. process that the trial cannot be relied on as having produced a just result.” Id. at 686, 104 S.Ct. at 2064. “This right does

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not mean errorless or perfect counsel whose competency of a defendant's lawyer, by itself, does not give rise to a representation is to be judged by hindsight.” Robertson v. presumption of waiver. Carmona v. State, 941 S.W.2d State, 187 S.W.3d 475, 483 (Tex.Crim.App.2006). Claims 949, 953 (Tex.Crim.App.1997). Nevertheless, “the totality of that a defendant received ineffective assistance of counsel the circumstances and reasonable inferences therefrom may are governed by a two-part test: (1) whether the attorney's support a finding of waiver.” Id. at 954; Wright v. State, 374 performance was deficient, i.e., did counsel make errors so S.W.3d 564, 579 (Tex.App.—Houston [14th Dist.] 2012, pet. serious that he or she was not functioning as the “counsel” ref'd). guaranteed by the Sixth Amendment; and if so, (2) whether that deficient performance prejudiced the party's defense. 8 Effective April 1, 2015, Rule 511 has been amended Strickland, 466 U.S. at 687, 104 S.Ct. at 2064. “An appellate with the design of aligning Texas law with federal law court looks to the totality of the representation and the on waiver of privilege by voluntary disclosure. Misc. particular circumstances of each case in evaluating the Docket No. 14–9232 (Tex. Nov. 19, 2014); see also effectiveness of counsel.” Thompson v. State, 9 S.W.3d 808, TEX.R. EVID. 511 cmt. (2015). Rule 511(1) as quoted 813 (Tex.Crim.App.1999); see also Okonkwo v. State, 398 above remains as part of the “General Rule” as stated in S.W.3d 689, 693 (Tex.Crim.App.2013) (appellate review the new Rule 511(a). focuses on the objective reasonableness of counsel's actual [12] [13] [14] [15] Courts have recognized several conduct “in light of the entire record”). circumstances in which the waiver of a privilege is implied. Consistent with Rule 511's acknowledgement that consent *9 [6] [7] [8] [9] [10] The adequacy of attorneyto disclosure of “any significant part” of a privileged matter performance is judged against what is reasonable considering may constitute waiver of the whole, a privilege may not prevailing professional norms. Strickland, 466 U.S. at 688, be waived selectively to disclose only such evidence as 104 S.Ct. at 2065. There is a strong presumption that, may be beneficial to the party holding the privilege. 9 In considering the circumstances, a lawyer's choices were this sense, a privilege cannot be used simultaneously “as reasonably professional and motivated by sound trial strategy. a shield and a sword”: after a partial disclosure is used as Id. at 689, 104 S.Ct. at 2065; Nava v. State, 415 S.W.3d a sword to gain litigation advantage, the privilege cannot 289, 307–08 (Tex.Crim.App.2013). In the face of this then be used to shield the remainder of the privileged presumption, a criminal defendant has the burden of showing communication. 10 With specific reference to the attorney- by a preponderance of the evidence that his attorney failed client communication privilege, it may be implicitly waived to provide constitutionally adequate representation. Bone v. State, 77 S.W.3d 828, 836 (Tex.Crim.App.2002). Limitations by raising issues regarding the performance of counsel, 11 of the record often render a direct appeal inadequate to raise particularly if an issue is injected into the case which requires a claim of ineffective assistance of counsel. See Goodspeed the attorney's testimony. 12 And a defense based on an v. State, 187 S.W.3d 390, 392 (Tex.Crim.App.2005). “An assertion of good-faith reliance on the advice of counsel ineffective-assistance claim must be firmly founded in the also has been held to impliedly waive the attorney-client record and the record must affirmatively demonstrate the communication privilege. 13 The touchstone of these various meritorious nature of the claim.” Menefield v. State, 363 theories of implied waiver is that some litigation conduct S.W.3d 591, 592 (Tex.Crim.App.2012); see also Thompson, requires, in fairness, that the remainder of the privileged 9 S.W.3d at 813. That necessary firm foundation is lacking in communication be divulged. 14 The scope of an implied this direct appeal. As such, this is not the “rare case in which waiver of privilege is a legal question to be determined under the trial record will by itself be sufficient to demonstrate an ineffective-assistance claim.” Nava, 415 S.W.3d at 308. the rules of evidence, 15 and thus it is not necessarily defined by the client's own articulation of the scope of privilege she [11] As applicable to this case, Rule 511(1) of the Rules intends to waive while at the same time authorizing disclosure of Evidence provided: “A person upon whom these rules of privileged communications considered helpful to her. confer a privilege against disclosure waives the privilege if ... the person ... voluntarily discloses or consents to 9 See Rodriguez v. State, 130 Tex.Crim. 438, 94 S.W.2d disclosure of any significant part of the privileged matter 476, 479–80 (1936) (finding implied waiver of attorney- unless such disclosure itself is privileged.” TEX.R. EVID. client privilege and admitting attorney's testimony about guilty plea, over objection, when appellant testified that 511(1). 8 The mere disclosure of privileged materials by

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former guilty plea was made on attorney's advice); Jones held to be waived when a client attacks the quality of his v. State, 181 S.W.3d 875, 878 (Tex.App.—Dallas 2006, attorney's advice....”). pet. ref'd); Carmona v. State, 947 S.W.2d 661, 664 12 See Lott, 424 F.3d at 453 (citing Johnson v. Alabama, (Tex.App.—Austin 1997, no pet.); 1 MCCORMICK ON EVIDENCE § 93 (7th ed. 2013) (“Waiver may 256 F.3d 1156, 1178 (11th Cir.2001). This particular be found ... from conduct such as partial disclosure means of implied waiver often arises through allegations which would make it unfair for the client to invoke of ineffective assistance. See, e.g., Bittaker, 331 F.3d at the privilege thereafter.”); cf. Wilkens v. State, 847 716–17; Tasby v. United States, 504 F.2d 332, 336 (8th S.W.2d 547, 551 (Tex.Crim.App.1992) (Appellant's Cir.1974) (“When a client calls into public question the Fifth Amendment rights were not violated when he competence of his attorney, the privilege is waived.”); introduced part of psychiatric examination evidence to Youkers v. State, 400 S.W.3d 200, 212 (Tex.App.— prove insanity defense and State introduced testimony Dallas 2013, pet. ref'd) (“Youkers necessarily placed in from examining psychiatrists to rebut his presentation issue privileged communications when he argued his of defense); Draper v. State, 596 S.W.2d 855, 857 attorney breached her legal duty to provide effective (Tex.Crim.App. [Panel Op.] 1980) (“Once having related assistance of counsel”). part of the facts of the transaction, a witness should 13 See United States v. Bilzerian, 926 F.2d 1285, 1292 (2d not be permitted to assert a Fifth Amendment privilege Cir.1991); see also United States v. Workman, 138 F.3d to prevent disclosure of additional relevant facts.”); 1261, 1263–64 (8th Cir.1998); Livingstone v. N. Belle Stephens v. State, 59 S.W.3d 377, 380 (Tex.App.— Vernon Borough, 91 F.3d 515, 536–37 (3rd Cir.1996); Houston [1st Dist.] 2001, pet. ref'd); Aetna Cas. & Surety 1 MCCORMICK, supra, § 93 (“if a party interjects the Co. v. Blackmon, 810 S.W.2d 438, 440–41 (Tex.App. ‘advice of counsel’ as an essential element of a claim —Corpus Christi 1991, orig. proceeding) (waiver found or defense, then that party waives the privilege as to all when holder of privilege deliberately revealed privileged advice received concerning the same subject matter”). matter while preparing an expert witness to testify). 14 See, e.g., Bittaker, 331 F.3d at 719 (“courts and 10 See In re Lott, 424 F.3d 446, 454 (6th Cir.2005) commentators have come to identify this simple rule (“litigants cannot hide behind the privilege if they are as the fairness principle”); Bilzerian, 926 F.2d at 1292 relying upon privileged communications to make their (“the privilege may implicitly be waived when defendant case”); Bittaker v. Woodford, 331 F.3d 715, 719 (9th asserts a claim that in fairness requires examination of Cir.2003); In re von Bulow, 828 F.2d 94, 103 (2d protected communications”); see also United States v. Cir.1987); see also Clark v. United States, 289 U.S. 1, 15, Miller, 600 F.2d 498, 501 (5th Cir.1979) (“We obviously 53 S.Ct. 465, 469, 77 L.Ed. 993 (1933) (“The privilege cannot condone a practice that enables a defendant or any takes flight if the relation is abused.”); Republic Ins. witness, after giving the jury his version of a privileged Co. v. Davis, 856 S.W.2d 158, 163 (Tex.1993) (“In an communication, to prevent the cross-examiner from instance in which the privilege is being used as a sword utilizing the communication itself to get at the truth.”). rather than a shield, the privilege may be waived.”). Consistent with this principle, the recent amendment to 11 See Lott, 424 F.3d at 452–53; Bittaker, 331 F.3d at 718– Texas Rule of Evidence 511, effective April 1, 2015, 19 (citing Hunt v. Blackburn, 128 U.S. 464, 9 S.Ct. provides that when a voluntary disclosure covered by the 125, 32 L.Ed. 488 (1888)); see also U.S. Fire Ins. Co. attorney–client privilege is made in a state proceeding, v. Asbestospray, Inc., 182 F.3d 201, 212 (3d Cir.1999) the waiver extends to undisclosed communications only (privilege waived when party “has made the decision if: and taken the affirmative step in the litigation to place (A) the waiver is intentional; the advice of the attorney in issue”) (quoting Rhone– (B) the disclosed and undisclosed communications or Poulenc Rorer, Inc. v. Home Indem. Co., 32 F.3d 851, information concern the same subject matter; and 863 (3d Cir.1994)); Garcia v. Zenith Elecs. Corp., 58 (C) they ought in fairness be considered together. F.3d 1171, 1175 n. 1 (7th Cir.1995) (noting that “the TEX. R. EVID. 511(b)(1). attorney-client privilege is generally waived when the 15 Cf. Granada Corp. v. Honorable First Court of Appeals, client asserts claims or defenses that put his attorney's 844 S.W.2d 223, 225 (Tex.1992) (orig.proceeding) advice at issue in the litigation”); Developments in the (acknowledging trial court must “interpret legal rules” in Law–Privileged Communications, Implied Waiver, 98 evaluating waiver of privilege). HARV. L.REV.. 1629, 1638 (1985) (“The privilege is *10 [16] All of these considerations are implicated by this case. Bailey's defense theory was reasonable mistake.

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That theory was substantially predicated on her reliance on afterthought to mitigate the damage after defense counsel 16 deliberately elicited “confidential evidence related to the counsel she claimed she received from her attorney. the extraneous offense in Jefferson County,” or that the In the course of examining her former lawyer to establish theory of reasonable mistake fortuitously sprang from the her legal defense, Bailey stated an intention to limit the testimony of the bail bondsman. scope of her waiver of the privilege. Sasser sought to exploit that attempted limitation through selective disclosure, Bailey's apparent desire to exclude evidence about the eliciting Roberts's testimony only about communications Jefferson County communications constituted an assertion expected to be helpful to the defense theory—a tactic of the privilege as a shield against the use of what turned which was harshly critical of the witness's professionalism. out to be prejudicial information divulged as part of the Through his questions Sasser disclosed communications broader context of the representation: that Roberts actually about the proposed Brazoria County representation, using had documented his significant efforts to inform and advise that testimony to portray the advice as tainted by the desire her about the consequences of a failure to appear. Those to collect a fee. His questions also caused the disclosure of communications were interconnected with communications communications concerning the need to actually appear for about the Harris County case in both time and substance. the Harris County hearing, which he depicted as inadequate Bailey failed to appear for a court date in Harris County less relative to the risk of not appearing, as well as confused by than a week after she failed to appear in Jefferson County, the effect of the prior bond revocation. All this evidence was against Roberts's strongly worded advice which expressly selectively elicited and offensively used in furtherance of the warned that a failure to appear “necessarily complicates your strategy of proving the reasonable-mistake defense. Harris County case.” To affirmatively rely upon suggested deficiencies in the evidence of communications about the 16 need to appear in Harris County while excluding the evidence The dissent suggests that “[p]rior to Sasser's cross- about the need to appear in Jefferson County would leave examination of Roberts during which confidential an unfair and misleading impression that Roberts had not evidence related to the extraneous offense in Jefferson County was disclosed, there was no evidence that adequately advised Bailey about the serious implications of appellant blamed her mistaken belief on advice of failing to appear. counsel or that Roberts ever told her that she did not need to appear at trial.” Such evidence would not be *11 The decision to divulge a substantial part of necessary for the trial court to conclude that Bailey her privileged communications to establish a defense of had waived privilege by consenting to disclosure of a reasonable mistake in this case—for which Bailey gave “significant part” of her attorney communications, see express consent—was itself sufficient to waive privilege TEX. R. EVID. 511, but regardless, a review of the as to the additional related and relevant interwoven entire trial record shows otherwise. As early as voir dire, communications. See TEX. R. EVID. . EVID. 511. That defense counsel previewed the reasonable-mistake trial waiver was implied, and the proverbial door was opened, well strategy by asking the venire panel whether there was before Sasser ever crossed the boundary of express consent “any reason” they could imagine “someone might not through the questions now alleged to constitute deficient show up for court.” Before Roberts was called to the performance on his part. It was already implied by the time stand, Sasser cross-examined the court coordinator about the procedures applied when a defendant fails to appear, Sasser elicited the communications about the failure to appear and asked: “If the defense attorney were to come to you in Jefferson County. and say: Hey, look, I just forgot to tell my client, my bad, my mistake, is that any type of problem?” In response, [17] [18] [19] A waiver of privilege is narrowly the coordinator stated: “They need to address it with the 17 construed, and the reasonable-mistake defense was not Judge.” Then before any testimony was elicited about a blanket waiver of all attorney-client communications, attorney-client communications relating to the Jefferson County charge, Sasser used his cross-examination to including ones unrelated to the mistake defense. 18 But by suggest that Roberts failed to adequately advise Bailey pursuing a strategy and persistently arguing that she had about the importance of appearing for the pretrial hearing a reasonable excuse for her failure to appear based on and the potential consequences of failing to appear. her communications with her lawyer, Bailey did place all Accordingly, it is not the case, as apparently suggested her communications with Roberts relevant to that particular by the dissent, that the defense theory of reasonable subject at issue. This understanding of the challenged line of mistake due to reliance on counsel arose merely as an questions is essentially conceded on page 4 of the appellant's

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brief, which concedes: “As part of her reasonable explanation 19 947 S.W.2d at 664. defense, Bailey consented to waiver of the privilege regarding *12 [20] The trial judge ruled that Bailey had waived a charge in Brazoria County.” Despite the self-serving her privilege. The record supports that ruling. Like other limitations stated as part of Bailey's express consent, by evidentiary rulings, a trial court's ruling determining that asserting the defense she necessarily consented to waiver a privilege has been waived is reviewed for abuse of of all the related and interwoven communications, including discretion, is upheld when it is within the zone of those about the importance of appearing in Jefferson County. reasonable disagreement, and may not be reversed “solely 17 because the appellate court disagrees with the decision.” 20 “Implied waivers are consistently construed narrowly. Considering the totality of the circumstances and the Courts ‘must impose a waiver no broader than needed to ensure the fairness of the proceedings before it.” In re reasonable inferences therefrom, the trial court did not abuse Lott, 424 F.3d at 453 (quoting Bittaker, 331 F.3d at 720). its discretion in finding implied waiver. The record does This is because “[a] broad waiver rule would no doubt not provide a firm foundation to affirmatively establish inhibit the kind of frank attorney-client communications that confidential communications were elicited without and vigorous investigation of all possible defenses that Bailey's actual consent, as the record is conflicted on that the attorney-client and work product privileges are subject. 21 Ordinarily, we may presume that an appellant's designed to promote.” Bittaker, 331 F.3d at 722. trial lawyer fully explained the possible consequences of 18 Cf. Marathon Oil Co. v. Moye, 893 S.W.2d 585, 590 eliciting evidence at trial. 22 Thus, at this procedural stage (Tex.App.—Dallas 1994, no writ) (voluntary disclosure and on this record, there is no need to address whether it of significant part of privileged material can result in would have been constitutionally deficient performance in implied waiver of privilege to other documents, though this case for trial counsel to inadvertently effect an implied waiver does not automatically allow disclosure of all waiver of privilege by a selective disclosure of privileged privileged materials). communications, when the record reflects that the selective In response to this implied-waiver analysis, the dissent disclosure was expressly authorized by the client, but the attempts to distinguish this appeal from Carmona v. record is silent as to whether counsel actually and correctly State, 19 observing that in Carmona the defendant's selective advised his client about the legal effect of the selective disclosure of privileged polygraph results related to “the disclosure (other than counsel's twice-repeated assurance to defense of the same charged offense” (sexual assault and the court that he had discussed the matter with the defendant). indecency with a child) as did the incriminatory statements made before the polygraph exam, which the defendant sought 20 Cameron, 241 S.W.3d at 19–20; Carmona, 947 S.W.2d to protect from disclosure. Meanwhile in this appeal, the at 664. Due to the fact-specific nature of the inquiry, dissent emphasizes that “Roberts represented appellant in two courts also have reviewed implied waiver rulings in separate cases”—i.e., separate charges of fraudulent use or particular for abuse of discretion. See, e.g., Davis, 856 possession of identifying information filed in Jefferson and S.W.2d at 164 (reviewing trial court's decision on waiver Harris Counties—and “[d]iscussions that the two may have of attorney–client privilege for abuse of discretion); had about one case would not be relevant and admissible as In re Grand Jury Proceedings, 219 F.3d 175, 183 (2d Cir.2000) (“Whether fairness requires disclosure to the other.” The distinction of two separate charges makes has been decided by the courts on a case-by-case no difference in this appeal, in which the communications basis, and depends primarily on the specific context in on both of two charges had relevance to Bailey's reasonable- which the privilege is asserted.”); but see United States excuse defense to a separate third charge, arising from her v. Mendelsohn, 896 F.2d 1183, 1188 (9th Cir.1990) later failure to appear in court as required in Harris County. (reviewing de novo court's holding that privilege had The attorney-client communications about the need to appear been waived). had no relevance and would not have been admissible on 21 Bailey's depiction of the record in this regard is either of the original Jefferson County and Harris County charges. Those communications only gained relevance and materially incomplete in its failure to acknowledge and address the totality of the circumstances and the became admissible when Bailey injected them into the trial reasonable inferences therefrom, including aspects of on a separate charge in her attempt to prove that she had a the record that do suggest an actual waiver of the reasonable excuse for failing to appear. privilege as found by the trial court, her statements on

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the record notwithstanding. Our dissenting colleagues as ineffective,” Rylander v. State, 101 S.W.3d 107, 111 reach the opposite conclusion by ignoring the implied- (Tex.Crim.App.2003), and that has not yet happened in this waiver doctrine and by accepting Bailey's and Sasser's case outside the context of trial counsel's active, ongoing statements as the conclusive facts concerning their representation of Bailey. 23 Certainly the circumstances here communications. The trial judge, who was in a better position in the courtroom to observe these events as they are not comparable to other examples of alleged misconduct transpired, concluded otherwise, and the dissent does that the Court of Criminal Appeals has found insufficiently not contend that there was no evidence to support that outrageous to support a finding of deficient performance in conclusion. The case identified in the dissent, Ex parte the absence of an explanation by counsel. 24 Varelas, 45 S.W.3d 627 (Tex.Crim.App.2001), provides no authority for overriding the trial judge's discretion 23 See also State v. Thomas, 428 S.W.3d 99, as to this issue. Unlike Bailey's direct appeal, which 106 (Tex.Crim.App.2014) (“When counsel faces an comes to us without the benefit of a post-trial evidentiary ineffective-assistance claim, the attorney-client privilege hearing, Varelas was an appeal from the denial of a is waived, and trial counsel has the opportunity to post-conviction application for a writ of habeas corpus. explain his actions.”); Bone v. State, 77 S.W.3d 828, 836 Varelas, 45 S.W.3d at 629. On the direct appeal in (Tex.Crim.App.2002) (“Under our system of justice, the that case, the Court of Criminal Appeals had rejected criminal defendant is entitled to an opportunity to explain the appellant's claim of ineffective assistance, noting himself and present evidence on his behalf. His counsel the inadequacy of the record. Id. at 632 (citing Varelas should ordinarily be accorded an opportunity to explain v. State, No. 72178, slip op. at 10–11 (Tex.Crim.App. her actions before being condemned as unprofessional Mar. 4, 1997) (not designated for publication)). The and incompetent.”). crucial Varelas affidavit was submitted after trial had concluded, in the context of the post-conviction habeas 24 See, e.g., Menefield v. State, 363 S.W.3d 591, proceeding. On the particular facts of that case, the 593 (Tex.Crim.App.2012) (failure to object to an Court concluded that the trial court's finding that trial infringement of the client's right to confront witnesses); counsel had used sound trial strategy in not requesting a Goodspeed v. State, 187 S.W.3d 390, 393–94 limiting instruction relating to evidence of the appellant's (Tex.Crim.App.2005) (failure to ask questions on voir extraneous acts was “unsupported by the record.” Id. at dire); Thompson, 9 S.W.3d at 814 (failing to continue 632 n.5; see also id. at 646–47 (Holland, X, concurring objecting to significant hearsay). in the denial of rehearing) (“I stand by the Court's opinion that there is no evidence in the record to suggest Bailey also cannot demonstrate harm under the second prong that the failure to request limiting instructions was the of Strickland. Despite Sasser's statements to the effect of result of trial strategy.”). Varelas thus involved a record “falling on his sword,” after unsuccessfully moving for that gave no support to the trial court's crucial factual a mistrial he subsequently made the strategic decision to finding in support of its ruling, and as such it is readily continue to elicit confidential communications from Roberts distinguishable from this direct appeal and its conflicted and to use them to argue the reasonable-mistake defense. The record relating to the waiver issue. record does not provide a firm foundation for a claim that 22 Bailey was harmed by this, considering that the evidence was See Robertson v. State, 187 S.W.3d 475, 484 (Tex.Crim.App.2006) (citing Strickland, 466 U.S. at all but conclusive as to her guilt on the failure to appear 689, 104 S.Ct. 2052); see also Carmona, 947 S.W.2d at charge, save the possibility of persuading the jury she had a 664 (concluding based on evaluation of record that it was reasonable excuse. “not irrational for the trial court to infer” that the client authorized a disclosure of privileged communications, We overrule Bailey's first issue alleging ineffective assistance “hoping for favorable results”). of counsel. *13 [21] Given the statutory defense of reasonable mistake and counsel's evident strategy in advocating for an acquittal II. Mistrial on that basis, this appeal does not conclusively establish [22] In the alternative, Bailey contends that the trial court that trial counsel's questions about Jefferson County were abused its discretion when it denied her motion for mistrial. so outrageous that no reasonable attorney would have asked She claims that Roberts's disclosure of privileged information them. “[T]rial counsel should ordinarily be afforded an was highly prejudicial, that no curative measures were taken opportunity to explain his actions before being denounced

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by the court, and that the disclosure likely affected the jury's disclosed to persons other than those to whom disclosure is verdict. made to further rendition of professional legal services to the client. TEX.R.CRIM. EVID. 503(a)(5). The privilege belongs [23] In addition to our explanation, above, that the privilege to the client. TEX.R.CRIM. EVID. 503(b),(c); Burnett v. already had been waived before the line of questions that State, 642 S.W.2d 765, 770 (Tex.Crim.App.1982). The gave rise to the motion for mistrial, we also note that the client can waive the privilege by voluntarily disclosing or testimony of which Bailey now complains was introduced consenting to the disclosure of a significant part of the by her own attorney. “[A] defendant may not complain of privileged matter. TEX.R.CRIM. EVID. 511. Disclosure evidence elicited by [her] own attorney.” Ex parte Ewing, by the attorney does not waive the privilege absent the 570 S.W.2d 941, 948 (Tex.Crim.App. [Panel Op.] 1978); see client's consent. See Cruz v. State, 586 S.W.2d 861, 865 also Durrough v. State, 672 S.W.2d 860, 873 (Tex.App.— (Tex.Crim.App.1979). To waive the privilege, the defense Corpus Christi 1984). Therefore, the trial court did not abuse attorney must act with his client's consent when disclosing the its discretion in refusing to grant a mistrial. privileged materials. See TEX.R.CRIM. EVID. 503(b), (c). Waiver may be inferred from the totality of the circumstances and reasonable inferences. Carmona v. State, 941 S.W.2d 949, 954 (Tex.Crim.App.1997). Conclusion

We affirm the judgment of the trial court. The State cites a series of cases in which, by their silence, defendants were held to have acquiesced to their attorney's waiver of the attorney-client privilege or some other right or admission. See Fuller v. State, 835 En banc reconsideration was requested. Tex.R.App. P. 49.7. S.W.2d 768, 771 (Tex.App.–Eastland 1992, pet. ref'd), disapproved on other grounds, Carmona, 941 S.W.2d A majority of the justices of the Court voted in favor of at 953–54 (holding defendant consented to disclosure of reconsidering the case en banc. privileged materials when lawyer disclosed same to deputy in The en banc court consists of Chief Justice Radack, and defendant's presence and defendant said nothing); Drimmer Justices Jennings, Keyes, Higley, Bland, Massengale, Brown, v. Appleton, 628 F.Supp. 1249, 1251–52 (S.D.N.Y.1986) Huddle, and Lloyd. (holding attorney-client privilege waived when defendant voluntarily permitted his attorney to testify to privileged Justice Massengale, writing for the majority of the en banc information without objecting); see also Stribling v. court, joined by Justices Bland, Brown, Huddle, and Lloyd. State, 542 S.W.2d 418, 419 (Tex.Crim.App.1976) (holding defendant acquiesced to stipulation entered into by his Chief Justice Radack, joined by Justices Jennings, Keyes, and attorney in court); Chaney v. State, 464 S.W.2d 653, 656 Higley, dissenting. (Tex.Crim.App.1971) (same); Genzel v. State, 415 S.W.2d 919, 921–22 (Tex.Crim.App.1967) (same); Griffith v. State, Sherry Radack, Chief Justice, dissenting. 635 S.W.2d 145, 147 (Tex.App.–Houston [1st Dist.] 1982, Because I believe that no competent attorney would no pet.) (same); see also Alvarado v. State, 912 S.W.2d 199, employ a trial strategy that calls for eliciting privileged 214–15 (Tex.Crim.App.1995) (holding that testimony was communications over his client's clearly-stated objection admissible as an adoptive admission because appellant was on the record, and because the record clearly supports present when made and clearly called for response); Tucker v. the conclusion that defense counsel did so in this case, I State, 771 S.W.2d 523, 535–36 (Tex.Crim.App.1988) (same). respectfully dissent. However, in this case, appellant was not silent as to her A client may refuse to disclose or allow disclosure of position on the attorney-client privilege. She repeatedly stated confidential communications made among the client, the to the court, “I'm only waiving privilege to the one case client's representatives, the attorney, and the attorney's that was filed against me in Brazoria County ...” and “[j]ust representatives to facilitate rendition of professional legal only that.” And, when her defense counsel started questioning services to the client. TEX.R.CRIM. EVID. 503(b). A Roberts outside the scope of this limited waiver of the communication is confidential if it is not intended to be attorney-client privilege, appellant sent defense counsel a

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note that said, “We can deal with this without bringing in privilege and “placed in issue all of her communications with Jefferson County.” Defense counsel admits that “[d]uring her lawyer about the need to actually appear for hearings as the exchange with the—with Mr. Roberts, my client was required by the court.” Essentially, the majority concludes attempting to tell me something, but because I was in the heat that appellant could not waive privilege as to the Brazoria of questioning, I was intent on the questioning, I wasn't listing County charges without also waiving privilege as to the to her intently.” Defense counsel also stated on the record that Jefferson County charges, and that to attempt to do so would his questioning of Roberts outside the scope of the authorized allow appellant to use the attorney-client privilege as both a waiver was “against [appellant's] wishes.” sword and a shield.

Based on the record before us, it cannot be said that appellant 1 An appellate court must review a trial court's ruling on a sat by and acquiesced in defense counsel's disclosure of motion for mistrial in light of the arguments before the confidential information. Appellant specifically defined the trial court at the time it ruled. Wead v. State, 129 S.W.3d parameters of her waiver, and when defense counsel exceeded 126, 129 (Tex.Crim.App.2004). those parameters, she attempted to stop him. She did In Carmona v. State, 947 S.W.2d 661, 664 (Tex.App.–Austin everything but stand up in open court and disrupt the court 1997, no pet.) the defense hired a polygraph examiner, who proceedings in an attempt to preserve her attorney-client conducted both a pretest interview and a polygraph test on privilege. the defendant. Id. at 662–63. Defense counsel disclosed the results of the polygraph to a prosecutor in an attempt to get Any suggestion that appellant might have authorized defense the charges dismissed, but objected at trial when the State counsel to disclose her privileged communications during attempted to introduce portions of the pretest interview. Id. whispered conversations with defense counsel during the trial After finding that the defendant consented to the disclosure is not supported, but indeed, is controverted by the record. of the results to the prosecutor, the court held that “the pretest The only two people privy to the whispered discussions interview and the test were essentially one communication during trial—appellant and defense counsel—have already [,]” and that the defendant could “not waive the privilege as stated on the record that no agreement to waive privilege to only the favorable parts.” Id. at 664. was ever reached by appellant and defense counsel. In this circumstance, no motion for new trial hearing is required This case is not like Carmona, in which the defendant —the contents of those communications between defense attempted to use parts of a confidential conversation to her counsel and appellant are already in the record, and both advantage, while excluding other parts, all in the defense parties to the communications testified that appellant did not of the same charged offense. There, both parts of the waive the privilege. confidential conversation were clearly relevant to the charged offense. Here, Roberts represented appellant in two separate Nor is there anything in the record that leads us to conclude cases—one in Harris County and one in Jefferson County. that the trial court disbelieved defense counsel's confession Discussions that the two may have had about one case would of error. It is unreasonable to believe that defense counsel not be relevant and admissible as to the other. Indeed, by would “fall on his sword” by falsely confessing to committing affirmatively introducing evidence that appellant planned not legal malpractice and ethical violations in an attempt to to appear in Jefferson County either, defense counsel injected provoke a mistrial for a client who had not yet been convicted. harmful evidence of character conformity that the State Indeed, the Court of Criminal Appeals has found the first generally would have been unable to present. See TEX.R. prong of Strickland met, without the necessity of a credibility EVID. 404(b). determination, when trial counsel filed an affidavit in which he stated that he had no trial strategy in failing to request In contrast, the Brazoria case that appellant consented to a jury instruction and that his actions were “simply an disclose was highly relevant to the Harris County case oversight.” See Ex parte Varelas, 45 S.W.3d 627, 632 because it served as the basis for the September 8 revocation (Tex.Crim.App.2001). of her bond, and it is the September 8 revocation that led to appellant's “reasonable belief” argument that she no longer Although not raised by the State, either at trial or on appeal, 1 needed to show up in court on September 21. Appellant the majority concludes that, by raising a “reasonable- believed that she could not “jump” a bond that had already excuse” defense strategy, appellant waived the attorney-client been revoked. On the day she failed to appear in Jefferson

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County, appellant's bond had not yet been revoked, so its relevance to the issue of appellant's “reasonable excuse” [Sasser]: Sir, why, when I was in your office, did you tell defense would be minimal, if any, because of the differing me that when you looked on your computer and saw her circumstances proceeding appellant's failure to appear in bond revoked on September 8th for her case it was a non- each county. In sum, appellant was not using confidential issue at that point, she was no longer in custody, there was a communications about Brazoria County as a sword, while warrant for her arrest, and for you—that nobody was asking using confidential communications about Jefferson County as you for the $15,000? Do you remember telling me that? a shield, because only Brazoria County had relevance to the [Bowie]: Yes, sir, but they changed—it was a forfeiture. charged offense in Harris County. There's a difference. You're saying revoked and bond forfeiture. Those are two different things. The majority also claims that appellant invoked a “reasonable excuse defense” by claiming “that [Roberts] failed to tell her [Sasser]: Sir, remember telling me you didn't know that at that she had to appear[,]” and that such action was “a plausible the time? Remember you told me you just found that out trial strategy.” The majority mischaracterizes appellant's on this case? reasonable excuse defense as an attack on Roberts and argues that her reasonable excuse defense was “substantially [Bowie]: That's correct. predicated on [Bailey's] reliance on the counsel she claimed [Sasser]: What did you find out in this case that you didn't she received from [Roberts].” While appellant did preview her reasonable excuse defense during voir dire, at no time know before about the difference between revocation and forfeiture? prior to Sasser's unauthorized disclosure did appellant suggest that Roberts was the source of her belief that she did not [Bowie]: I didn't understand that if you—if your bond was have to go to court because her bond had been revoked. already revoked, you still cannot forfeit that bond if you The first evidence regarding a possible source for appellant's don't show up on that day. That's what I did not know. belief that she did not have to go to trial after her bond was revoked was appellant's bailbondsman, not Roberts. It was [Sasser]: You've been doing this for ten years and you only after defense counsel “overstepped [his] bounds” and didn't understand how that worked, did you? mentioned the Jefferson County proceeding was there any evidence suggesting that Roberts was a source of appellant's [Bowie]: No, sir. mistaken belief. [Sasser]: Certainly, this defendant wouldn't be expected to know that? Prior to Sasser's cross-examination of Roberts during which confidential evidence related to the extraneous offense in **** Jefferson County was disclosed, there was no evidence that appellant blamed her mistaken belief on advice of counsel [Sasser]: And did you further tell her that revocation by or that Roberts told her that she did not need to appear at the Court, basically, cancels your contract with her, there's trial. Indeed, the first evidence on this issue was elicited from nothing else for her to perform, no other performance Stim Bowie, appellant's bail bondsman, during the following needed in that contract? exchange with defense counsel, Sasser: [Bowie]: That is correct. [Sasser]: Do you remember telling me: I was a little confused because the Court had revoked her bond on the Appellant's defense was that her belief that the September 8th, but then they forfeited it on the 21st, and you said you 8 revocation of her bond excused her from the obligation had never even seen that before; do you remember telling to appear on September 21 was reasonable, especially since me that? Bowie, a 10–year–bailbondsman, believed likewise. And, more importantly, the defense could have be established [Bowie]: Yes, sir, I did. without divulging any confidential information other than the fact that there was a warrant for appellant's arrest in Brazoria **** County, which led to the revocation of her bail on September 8 in Harris County.

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In light of these considerations, I conclude that appellant The majority states that “[appellant] stated an intention to did not voluntarily waive the attorney-client privilege as limit the scope of her waiver of the privilege[,]” but “Sasser to the Jefferson County proceedings and any discussions sought to exploit that attempted limitation through selective with Roberts about that extraneous offense. The decision to disclosure[.]” Even if I were to agree with the majority's waive attorney-client privilege belongs to the client, and no conclusion that Sasser's trial strategy waived appellant's reasonable attorney would employ a trial strategy that strips attorney-client privileged through his cross-examination of his client of that right. As such, this is one of those rare Roberts about the Jefferson County proceeding, such trial instances in which “no reasonable trial strategy could justify strategy was clearly undertaken without appellant's consent. trial counsel's acts or omissions, regardless of his or her No competent trial attorney would employ a trial strategy subjective reasoning.” Lopez v. State, 343 S.W.3d 137, 143 that requires eliciting privileged communications, or waiving (Tex.Crim.App.2011). Because the majority holds otherwise, a privilege as to those communications, over his client's I respectfully dissent. clearly-stated objection on the record. Put simply, if Sasser's trial strategy required waiving a privilege that his client did not want waived, his representation of her was ineffective, All Citations especially since it caused the admission of an otherwise inadmissible extraneous offense. --- S.W.3d ----, 2015 WL 4497773

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

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 19