Lajuan Cecile Bailey v. State
Opinions
OPINION ON EN BANC RECONSIDERATION
Michael Massengale, Justice
A jury convicted appellant Lajuan Cecile Bailey of failure to appear as required for [765] a pretrial hearing. See Tex. Penal. Code Ann. § 38.10. It assessed punishment at: 10 years’ confinement and a $10,000 fine. See id. § 12.34.
It was undisputed that Bailey failed to appear as required for a pretrial hearing, and her trial strategy was to invoke the statutory defense available when “the actor had a reasonable excuse” for her failure to appear in accordance with the terms of her release. See id. § 38.10(c). She affirmatively 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 other purpose for cross-examining her attorney. That was a plausible trial strategy, which entailed an implied waiver of the attorney-client privilege because it placed in issue all of her communications with her lawyer about the need to actually appear for hearings as required by the court.
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 eviden-tiary hearing, she claims that her trial counsel divulged privileged communications without authorization. To establish such a claim on direct appeal, an affirmative demonstration of deficient attorney performance and resulting harm must be firmly founded in the record. Although Bailey contends that she did not consent to1 the waiver of privilege in connection with her trial counsel’s cross-examination of her former lawyer, the trial judge expressly found that such a waiver in fact had occurred. That evidentiary, ruling is supported by the record.
We hold that the trial court did not abuse its discretion to conclude that in the course of presenting the' statutory defense 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 selectively to only those communications that were helpful to the defense. As a matter of law, the waiver also extended to all other related attorney communications which were relevant to the defense and thereby, in fairness, became admissible when Bailey injected those communications into the case. Because Bailey does not argue and the record does not reveal any other plausible strategy to defend the charge of failure to appear, there also has been no demonstration of harm.
Bailey also contends that the trial court erred in overruling her motion for mistrial based on the disclosure • of her attorney-client communications. The trial court acted within its discretion to deny the mistrial because the testimony of which Bailey complains was introduced by her own attorney.
We affirm the judgment.
Background
Our review of an ineffective-assistance claim on direct appeal requires evaluation of allegedly deficient performance in context of the totality of the' representation and in light of the entire record.1 To the extent this appeal implicates the trial court’s evidentiary determination that a [766] privilege was waived, we owe “almost total deference” to an implied finding of any facts that would support the ruling and would be supported by the record, especially when such findings are based on an evaluation of credibility and demeanor.2
Lajuan Bailey was charged in 2009 with the felony offense of fraudulent use or possession of identifying information in Harris County.3 She was charged with a separate instance of the same crime that same year in Jefferson County. In both cases, she was released from custody on bond pending trial.
A.Circumstances of failure to appear
Bailey hired attorney Brian Roberts to defend her in both cases. A pretrial conference was scheduled to be held in Harris County on September 7, 2010. Fearing that the hearing would preclude him from attending a friend’s funeral, Roberts arranged to have the conference reset. On September 2, he informed Bailey that the hearing had been rescheduled to September 21.
On September 8, Bailey’s bond was revoked in Harris County because a new charge had been filed against her in Brazo-ria County. A warrant had issued for Bailey’s arrest on that charge, felon in possession of a firearm. See Tex. Penal Code § 46.04(a).
Bailey was scheduled to appear for a separate hearing in Jefferson County on September 15, 2010. She did not appear. Her Jefferson County bond was forfeited, a capias was issued, and Roberts withdrew from representing her in that case. On September 21, she did not attend the rescheduled pretrial conference in Harris County. As a consequence, Roberts withdrew from representing her in the Harris County case as well, and the State charged Bailey with the offense of failure to appear.
B. Voir dire
While selecting the jury, defense counsel Jeffrey Sasser previewed Bailey’s strategy of presenting a reasonable excuse for her failure to appear. Sasser stated: “The law for bail jumping does allow a defense if someone had a reason, a legitimate reason for not showing up.” He then asked the venire panel whether there was “any reason” they could imagine “someone might not show up for court,” eliciting responses that included “hospital,” “family emergency,” and “incarcerated.” Sasser then asked: “What about if they didn’t know, would that be a legitimate reason?” One venireperson responded “No,” prompting Sasser to retort: “If they didn’t know they were supposed to come to court?” The transcript indicates the panel responded “in unison”: “No.” This line of discussion then ended after the trial judge sustained an objection from the State.
C. State’s motion to compel
At the beginning of trial testimony, the court held a hearing on the State’s motion to compel the testimony of Bailey’s original defense attorney, Brian Roberts, as a witness to testily “about information regarding resets and information passed on by the defense attorney from the Court to [767] his client for purposes of showing up in court.” Roberts was present and asserted his unwillingness to divulge information relating to a former client unless ordered to do so by the court. The State argued that Roberts could be compelled to testily about his communication of court dates to Bailey, as the transmission of this information is exempt from the attorney-client communication privilege under the rule of Austin v. State, 934 S.W.2d 672 (Tex.Crim. App.1996). The trial court agreed, granted the State’s motion to compel, and ordered Roberts to testify.
D.Evidence of Bailey’s failure to appear
Free access — add to your briefcase to read the full text and ask questions with AI
OPINION ON EN BANC RECONSIDERATION
Michael Massengale, Justice
A jury convicted appellant Lajuan Cecile Bailey of failure to appear as required for [765] a pretrial hearing. See Tex. Penal. Code Ann. § 38.10. It assessed punishment at: 10 years’ confinement and a $10,000 fine. See id. § 12.34.
It was undisputed that Bailey failed to appear as required for a pretrial hearing, and her trial strategy was to invoke the statutory defense available when “the actor had a reasonable excuse” for her failure to appear in accordance with the terms of her release. See id. § 38.10(c). She affirmatively 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 other purpose for cross-examining her attorney. That was a plausible trial strategy, which entailed an implied waiver of the attorney-client privilege because it placed in issue all of her communications with her lawyer about the need to actually appear for hearings as required by the court.
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 eviden-tiary hearing, she claims that her trial counsel divulged privileged communications without authorization. To establish such a claim on direct appeal, an affirmative demonstration of deficient attorney performance and resulting harm must be firmly founded in the record. Although Bailey contends that she did not consent to1 the waiver of privilege in connection with her trial counsel’s cross-examination of her former lawyer, the trial judge expressly found that such a waiver in fact had occurred. That evidentiary, ruling is supported by the record.
We hold that the trial court did not abuse its discretion to conclude that in the course of presenting the' statutory defense 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 selectively to only those communications that were helpful to the defense. As a matter of law, the waiver also extended to all other related attorney communications which were relevant to the defense and thereby, in fairness, became admissible when Bailey injected those communications into the case. Because Bailey does not argue and the record does not reveal any other plausible strategy to defend the charge of failure to appear, there also has been no demonstration of harm.
Bailey also contends that the trial court erred in overruling her motion for mistrial based on the disclosure • of her attorney-client communications. The trial court acted within its discretion to deny the mistrial because the testimony of which Bailey complains was introduced by her own attorney.
We affirm the judgment.
Background
Our review of an ineffective-assistance claim on direct appeal requires evaluation of allegedly deficient performance in context of the totality of the' representation and in light of the entire record.1 To the extent this appeal implicates the trial court’s evidentiary determination that a [766] privilege was waived, we owe “almost total deference” to an implied finding of any facts that would support the ruling and would be supported by the record, especially when such findings are based on an evaluation of credibility and demeanor.2
Lajuan Bailey was charged in 2009 with the felony offense of fraudulent use or possession of identifying information in Harris County.3 She was charged with a separate instance of the same crime that same year in Jefferson County. In both cases, she was released from custody on bond pending trial.
A.Circumstances of failure to appear
Bailey hired attorney Brian Roberts to defend her in both cases. A pretrial conference was scheduled to be held in Harris County on September 7, 2010. Fearing that the hearing would preclude him from attending a friend’s funeral, Roberts arranged to have the conference reset. On September 2, he informed Bailey that the hearing had been rescheduled to September 21.
On September 8, Bailey’s bond was revoked in Harris County because a new charge had been filed against her in Brazo-ria County. A warrant had issued for Bailey’s arrest on that charge, felon in possession of a firearm. See Tex. Penal Code § 46.04(a).
Bailey was scheduled to appear for a separate hearing in Jefferson County on September 15, 2010. She did not appear. Her Jefferson County bond was forfeited, a capias was issued, and Roberts withdrew from representing her in that case. On September 21, she did not attend the rescheduled pretrial conference in Harris County. As a consequence, Roberts withdrew from representing her in the Harris County case as well, and the State charged Bailey with the offense of failure to appear.
B. Voir dire
While selecting the jury, defense counsel Jeffrey Sasser previewed Bailey’s strategy of presenting a reasonable excuse for her failure to appear. Sasser stated: “The law for bail jumping does allow a defense if someone had a reason, a legitimate reason for not showing up.” He then asked the venire panel whether there was “any reason” they could imagine “someone might not show up for court,” eliciting responses that included “hospital,” “family emergency,” and “incarcerated.” Sasser then asked: “What about if they didn’t know, would that be a legitimate reason?” One venireperson responded “No,” prompting Sasser to retort: “If they didn’t know they were supposed to come to court?” The transcript indicates the panel responded “in unison”: “No.” This line of discussion then ended after the trial judge sustained an objection from the State.
C. State’s motion to compel
At the beginning of trial testimony, the court held a hearing on the State’s motion to compel the testimony of Bailey’s original defense attorney, Brian Roberts, as a witness to testily “about information regarding resets and information passed on by the defense attorney from the Court to [767] his client for purposes of showing up in court.” Roberts was present and asserted his unwillingness to divulge information relating to a former client unless ordered to do so by the court. The State argued that Roberts could be compelled to testily about his communication of court dates to Bailey, as the transmission of this information is exempt from the attorney-client communication privilege under the rule of Austin v. State, 934 S.W.2d 672 (Tex.Crim. App.1996). The trial court agreed, granted the State’s motion to compel, and ordered Roberts to testify.
D.Evidence of Bailey’s failure to appear
The State called as witnesses Bailey’s bail bondsman and several Harris County court employees, including the district court coordinator. The State relied on these witnesses to establish the basic facts supporting its case: Bailey was charged with a crime, she had been released on bond with the expectation that she appear in court when required, she was obligated to appear in court on September 21, and she did not appear. The bail bondsman testified that he had spoken to Bailey on September 8, and that she told him “that there was a reset, an off-docket reset.” The bondsman also made several subsequent attempts to communicate with Bailey between September 8 and the next court date on September 21, but these were unsuccessful because she had moved and changed her phone number.4
E. Evidence of Bailey’s knowledge of the Harris County court date
On the second day of testimony, the State called Roberts to the stand, indicating that it intended to ask him about his representation of Bailey in the Jefferson County case. Defense attorney Sasser objected, arguing that any mention of Jefferson County and Bailey’s failure to appear for trial in that case would be “highly prejudicial” and inadmissible under Rule 403.5 The State argued that the evidence was admissible under Rule 404(b) in order to show motive or intent. The court ruled that the Jefferson County case should not be discussed unless the defense “opened the door.”
Accordingly, throughout direct examination the State confined its questioning to the history of the Harris County matter. Roberts testified about a series of resets in the Harris County case. He explained that he requested the final reset because a close friend had died and there was a risk the funeral would coincide with the hearing. He sent a lawyer with whom he shared office space, Chip Lewis, to obtain the reset. He further confirmed that he had telephoned Bailey on September 2 and told her about the reset.
F. Cross-examination of former attorney
[768] During cross-examination, Sasser initially asked questions critical of Roberts’s handling of the reset. For example, he asked Roberts why he had sent another attorney to handle it and why he failed to consult with Bailey prior to rescheduling. Eventually, Sasser changed subjects to the Brazoria County charge. That subject had not been part of the State’s direct examination, and the new line of defense questioning prompted a renewed discussion of the attorney-client privilege:
Sasser: Do you remember having — I know this is real touchy because of the attorney-client privilege. For purposes of my questioning, if I ask you a question that invades attorney-client privilege, you can assume it’s okay to answer. I’ve talked to my client about this. Okay? I want to go into specific conversations. I want to have my client—
Prosecutor: Judge, may we approach.
(Emphasis supplied.) At the bench, the prosecutor then stated: “I think for Mr. Roberts’s protection, he’s worried about going into this and he needs to hear that from the client outside the presence of the jury so that Mr. Roberts is comfortable that she is allowing him to answer the questions.” The judge then excused the jury from the courtroom, and the discussion continued in Bailey’s presence:
Sasser: Judge, at this time I anticipate asking Mr. Roberts about communications that he had with my client regarding the warrants that came up from Brazoria County. Not from Jefferson County, not from Beaumont. We already talked about this earlier, but the fact, you know, [the prosecutor] had come in here and gotten the bond revoked, she had these new cases in Brazoria County, I basically want to talk about the conversations he might have had with her about that and the fact—
The Court: You discussed these with your client1 ?
Sasser: Yes, sir, I have.
The Court: Alright. I will allow you to.
Sasser: For my protection, may I get something on the record from my client?
The Court: Any objection?
Prosecutor: No, Judge. I think for Mr., Roberts, he needs to hear it out of Ms. Bailey’s mouth that she’s waiving the privilege between her and the attorney.
Sasser: You just heard what I discussed with the judge.
Defendant: Only on one case. That’s the only case that ivas because I had no other charges. There was only one case filed.
Sasser: Are you waiving the attorney-client privilege by your prior attorney, Mr. Roberts, for me to question him regarding communications that you may have had with him around September 2nd, 2010 regarding your outstanding cases, the Brazoria cases?
Defendant: Yes, one case.
The Court: All right. Anything further?
Prosecutor: Not unless Mr. Roberts has questions of his prior client or has concerns.
Sasser: I think it’s clear she waived the privilege at this point. I’m offering Mr. Roberts the opportunity if he doesn’t feel uncomfortable (sic) or doesn’t need to make inquiries so we don’t have to take the jury back out. Mr. Roberts, do you think that’s adequate for the attorney-client privilege for you to answer the questions unencumbered by attorney-client privilege you used to have with Ms. Bailey?
[769] Roberts: I didn’t quite' hear what it is she’s waiving. I don’t feel comfortable testifying to anything unless I hear directly from her the particular privileged conversations .that she’s waiving her privilege to. Are you waiving privilége—
Defendant: I’m only waiving privilege to the one case that was filed against me in Brazoria County during this time because everything, did not happen at the same time. Do you understand what I’m saying?
Roberts:, Correct.
Defendant: There’s only one thing that changed during the whole time I was on bond, that is the only thing that I’m talking about and referencing, not everything subsequent or after the fact.
Sasser: She had a gun ease, the initial case'filed in Brazoria County, felony possession of a gun. That was the . warrant [the prosecutor] came in and showed you. I would assume.- I wasn’t here, Judge. She picked up this new case in Brazoria and you revoked her bond.
Roberts: That’s the only thing. Nothing else. I understand.
Defendant: Just only that.
(Emphasis supplied.)
In response to questioning by the defense, Roberts confirmed that during the time leading up to the September 21, 2010 Harris County court date, Bailey had an “open warrant” stemming from the Brazo-ria County charge. Sasser probed the extent-to which Roberts informed Bailey of the seriousness of the warrant and the need to present herself to authorities. He elicited testimony confirming that Roberts prepared the motion to withdraw in advance of the hearing because he knew that ’ Bailey would not be coming to court, and explaining how he knew that.6 As Sasser continued to probe the attorney-witness’s communications with his former client, he reassured him: “We’ll get through this. It’s all out right now. The jury is going to hear about everything. Don’t worry about the attorney-client. Everything has been waived at this point.” (Emphasis supplied.) .
The exchange between defense attorney and former-attorney witness apparently became heated when Sasser asked ques- - tions suggesting that Roberts, along with his office mate Lewis, had been'demanding higher fees of Bailey in the wake of the Brazoria County charges. Roberts denied attempting to charge Bailey more for the cases he had been retained to handle in Jefferson and Harris Counties; and he also explained that his office mate, Lewis, did offer to defend her against the fresh charges in Brazoria County for an additional fee.
Sasser eventually asked Roberts whether he warned Bailey that she would be “making a huge mistake” by not appearing and forsaking the opportunity for plea bar[770] gains he had been negotiating. Roberts replied that on September 14 he had emailed, texted, and called Bailey to advise her of what would happen if she did not appear for court in Jefferson County. In response to Sasser’s questions, Roberts revealed that he had expressly warned Bailey by email that her failure to appear in Jefferson County would likely result in a felony “bond jumping charge” and also “necessarily complicates your Harris County case.”
When another discussion of the privilege ensued, the trial court stated its understanding that “we have opened the door, we have come into both the Jefferson County charges and the Brazoria County charges, along with the charge here.” When Bailey interjected that she “was very specific in saying that I wanted to stick to. the Brazoria County charge,” the trial judge reiterated that “the door has been opened as to both charges” and that the privilege had been waived.
When trial resumed the next day, the parties continued to debate the privilege issue in the context of defense motions for mistrial and, in the alternative, to strike the testimony relating to the Jefferson County charges. Among other responses, the State argued that Bailey’s privilege had been waived for several reasons:
Number one, they were accusing Mr. Roberts of something, therefore, the privilege disappears so he can defend himself. Number two, it was brought up by the defense as a contemplated part of their [reasonable-mistake] defense. Number three, the defendant did not assert her privilege after hearing her lawyer say: The privilege is waived, go ahead and answer the question. And she very easily could have done that over the long period of time at some point, Judge.7
The trial court denied the motion for mistrial and the motion to strike.
Sasser then continued his cross-examination of Roberts. He immediately and affirmatively elicited testimony that although Roberts had called, texted, and emailed Bailey the day before her scheduled appearance admonishing her to appear in Jefferson County, he did not repeat these communications in regard to Harris County. In phrasing his questions, Sasser emphasized that Bailey’s bond had been revoked in Harris County prior to her scheduled appearance on September 21, whereas in Jefferson County, Bailey’s bond had not been revoked prior to her failure to appear there on September 15.
Later, during recross-examination, Sas-ser returned to the substance of the communications about the Jefferson County case, and he asked Roberts to confirm that Bailey understood that if she had appeared at the hearing in Beaumont, she would have been taken into custody.
G. Bailey’s testimony
Once the State rested, the defense called Bailey to the stand. She emphasized that she had not wanted to be taken into custo[771] dy on the Brazoria County warrants because she wanted the opportunity “to take care of everything” and have her “fair day in court.” She also discussed meetings in which Roberts’s office mate, Lewis, offered to defend her on the Brazoria County charge for $30,000. According to Bailey, in addition to allowing Roberts to attend a funeral, the rescheduling of the Harris County hearing also served the purpose of giving her “more time out there in the free world to get money together to give attorneys.”
After reviewing the substance of these discussions with attorneys Roberts and Lewis, defense counsel asked Bailey about her understanding of her general status at that time with respect to her various pending criminal proceedings. Bailey’s response specifically addressed the outstanding warrants for her arrest:
Q. (By Mr. Sasser) Okay. So, after you left your meeting, that last meeting, the one that was right before the off-docket reset was done, did you feel like if you got this money together that you would be able to stay out of custody and fight your cases like you had been out before?
A. Yes, I did.
Q. And why?
A. Because ... once retained and everything, the plan was to do a non-arrest bond in Brazoria County. That would have alleviated any warrants, I wouldn’t have had warrants in any counties, and I would have had a good reputable person from Brazoria County to help me fight the charge that was brought against me.
Defense counsel also asked Bailey to explain her failure to appear in Jefferson County:
Q. Why did you not go to Beaumont when you were supposed to go? You said you had multiple reasons. You were talking about your first reason.
A. Okay. The first reason I had is because of my bond being revoked in Harris County. I wasn’t prepared for that. The second reason was because when speaking with my attorney at that time, when he — when Mr. Roberts said he sent me the email, I didn’t even get the e-mail. I was under the impression that our plan was to handle all of my cases at one time, and, you know, I guess to have a plan for everything.
She thus testified that she did not appear in Jefferson County because she “wasn’t prepared” for her bond revocation in Harris County, and she was under the “impression” that the “plan” arranged with her attorney was to consolidate and resolve all of the pending charges. When Bailey was asked why she did not appear in Harris County on September 21, she answered, “Because according to the agreement I had on the bail agreement, my bond was revoked.” Bailey went on to explain that she had a background in real estate and was familiar with contracts.
Rather than relying on Bailey’s own lay understanding of the implications of the revocation of bail to establish the reasonableness of her excuse, defense counsel then sought to bolster the reasonableness of Bailey’s understanding of her contract with the bonding company:
Q. (By Mr. Sasser) Well, what did you do when you found out it was revoked? Did you try to get an understanding of this agreement?
A. Yes, I did.
Q. Who did you try to get that understanding from?
A. From my attorney, Mr. Roberts, and from the bonding company.
[772] H. Defense closing argument and judgment of conviction
The jury charge contained an instruction on the defense of reasonable excuse that specifically addressed Bailey’s claim that she had believed the revocation of her Harris County bond on September 8 relieved her of the obligation to attend court on September 21. See Tex. Penal Code § 38.10(c). In his closing argument, Sas-ser admitted that Bailey had failed to appear but argued that the jury should acquit her because she had a reasonable excuse. He contrasted Bailey’s situation in Jefferson County, where her bond had not been revoked, and her circumstances in Harris County, where bond had been revoked prior to her scheduled appearance.
Sasser noted that Roberts had specifically warned Bailey to appear in Jefferson County, but he had not warned her about Harris County. He emphasized that in response to the charges pending against her in three different counties, Bailey did “the one thing she knows to do, call her attorney, says: Hey what do we do?” The thrust of this argument was that she 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:
We know he didn’t send her anything else to say: Hey, look you need to come to Houston. You need to come to this court as well or else this could happen. We know that because he said he did not e-mail her anything.
The defendant testified and said she had conversations with Mr. Roberts. And, basically, it was, you know, if you can get this money together, we can try to take care of your problems. And that’s what she was trying to do.
... She was trying to get a solution. She was counting on her attorneys at the time to help her out of — a helpless situation, really, at the time; but in her mind, she was thinking, maybe I can still stay out. I mean, as a defendant that’s what you think. I don’t want to be in jail. And she’s thinking, if I can get this money together like my attorneys told me, they can take care of all this stuff. By the way, my bondsmen already told me my bond is revoked in the court. My attorneys already told me my bond is revoked in the court. There’s no consequence. If I don’t go to court, I’m just going to get my affairs in order, try to get money together, get all cases consolidated, taken care of.
(Emphasis supplied.) Sasser thus argued that Bailey’s course of conduct had been sanctioned by the attorneys she had retained to manage her legal problems, emphasizing her desire to remain free from custody so that she could gather money to hire Lewis as her attorney in Brazoria County and consummate her plans with Roberts to resolve the Jefferson County and Harris County charges together.
The jury found Bailey guilty, and after a hearing on punishment, imposed a fine of $10,000 and a prison sentence of ten years. The judge entered judgment on the jury’s verdict. Bailey filed a notice of appeal and Sasser moved to withdraw.
Analysis
Bailey argues that she received ineffective assistance of counsel and that the trial court erred by denying her motion for mistrial.
I. Ineffective assistance of counsel
Bailey argues that she received ineffective assistance of counsel, but only based upon a portion of Sasser’s cross-examination which elicited testimony about attor[773] ney-client communications. The only examination alleged to be 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 rendered ineffective assistance by failing to explain the legal implications of her express waiver of privilege, by opening the door to evidence about the Jefferson County extraneous 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.
The constitutional right to counsel in a criminal prosecution exists to protect the fundamental right to a fair trial. Strickland v. Washington, 466 U.S. 668, 684, 104 S.Ct. 2052, 2063, 80 L.Ed.2d 674 (1984). In this context, “a fair trial is one in which evidence subject to adversarial testing is presented to an impartial tribunal for resolution of issues defined in advance of the proceeding.” Id. at 685, 104 S.Ct. at 2063. “The benchmark for judging any claim of ineffectiveness must be whether counsel’s conduct so undermined the proper functioning of the adversarial 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 not mean errorless or perfect counsel whose competency of representation is to be judged by hindsight.” Robertson v. State, 187 S.W.3d 475, 483 (Tex.Crim.App.2006). Claims that a defendant received ineffective assistance of counsel are governed by a two-part test: (1) whether the attorney’s performance was deficient, i.e., did counsel make errors so serious that he or she was not functioning as the “counsel” guaranteed by the Sixth Amendment; and if so, (2) whether that deficient performance prejudiced the party’s defense. Strickland, 466 U.S. at 687, 104 S.Ct. at 2064. “An appellate court looks to the totality of the representation and the particular circumstances of each case in evaluating the effectiveness of counsel.” Thompson v. State, 9 S.W.3d 808, 813 (Tex.Crim.App.1999); see also Okonkwo v. State, 398 S.W.3d 689, 693 (Tex.Crim.App. 2013) (appellate review focuses on the objective reasonableness of counsel’s actual conduct “in light of the entire record”).
The adequacy of attorney performance is judged against what is reasonable considering prevailing professional norms. Strickland, 466 U.S. at 688, 104 S.Ct. at 2065. There is a strong presumption that, considering the circumstances, a lawyer’s choices were reasonably professional and motivated by sound trial strategy. Id. at 689,104 S.Ct. at 2065; Nava v. State, 415 S.W.3d 289, 307-08 (Tex.Crim.App.2013). In the face of this presumption, a criminal defendant has the burden of showing by a preponderance of the evidence that his attorney failed to provide constitutionally adequate representation. Bone v. State, 77 S.W.3d 828, 836 (Tex.Crim.App.2002). Limitations of the record often render a direct appeal inadequate to raise a claim of ineffective assistance of counsel. See Goodspeed v. State, 187 S.W.3d 390, 392 (Tex.Crim.App.2005). “An ineffective-assistance claim must be firmly founded in the record and the record must affirmatively demonstrate the meritorious nature of the claim.” Menefield v. State, 363 S.W.3d 591, 592 (Tex.Crim.App.2012); see also Thompson, 9 S.W.3d at 813. That necessary firm foundation is lacking in this direct appeal. As such, this is not the “rare case in which the trial record will by itself be sufficient to demonstrate an ineffective-assistance claim.” Nava, 415 S.W.3d at 308.
As applicable to this case, Rule 511(1) of the Rules of Evidence provided: “A person upon whom these rules confer a [774] privilege against disclosure waives the privilege if ... the person ... voluntarily discloses or consents to disclosure of any significant part of the privileged matter unless such disclosure itself is privileged.” Tex.R. Evid. 511(1).8 The mere disclosure of privileged materials by a defendant’s lawyer, by itself, does not give rise to a presumption of waiver. Carmona v. State, 941 S.W.2d 949, 953 (Tex.Crim.App.1997). Nevertheless, “the totality of the circumstances and reasonable inferences therefrom may support a finding of waiver.” Id. at 954; Wright v. State, 374 S.W.3d 564, 579 (Tex.App. — Houston [14th Dist.] 2012, pet. ref d).
Courts have recognized several circumstances in which the waiver of a privilege is implied. Consistent with Rule 511⅛ acknowledgement that consent to disclosure of “any significant part” of a privileged matter may constitute waiver of the whole, a privilege may not be waived selectively to disclose only such evidence as may be beneficial to the party holding the privilege.9 In this sense, 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, the privilege cannot then be used to shield the remainder of the privileged communication.10 With specific reference to the attorney-client communication privilege, it may be implicitly waived by raising issues regarding the performance of counsel,11 particularly if an issue is injected into [775] the case which requires the attorney’s testimony.12 And a defense based on an assertion of good-faith reliance on the advice of counsel also has been held to impliedly waive the attorney-client communication privilege.13 The touchstone of these various theories of implied waiver is that some litigation conduct requires, in fairness, that the remainder of the privileged communication be divulged.14 The scope of an implied waiver of privilege is a legal question to be determined under the rules of evidence,15 and thus it is not necessarily defined by the client’s own articulation of the scope of privilege she intends to waive while at the same time authorizing disclosure of privileged communications considered helpful to her.
All of these considerations are implicated by this case. Bailey’s defense theory was reasonable mistake. That theory was substantially predicated on her reliance on the counsel she claimed she received from her attorney.16 In the [776] course of examining her former lawyer to establish her legal defense, Bailey stated an intention to limit the scope of her waiver of the privilege. Sasser sought to exploit that attempted limitation through selective disclosure, eliciting Roberts’s testimony only about communications expected to be helpful to the defense theory — a tactic which was harshly critical of the witness’s professionalism. Through his questions Sasser disclosed communications about the proposed Brazoria County representation, using that testimony to portray the advice as tainted by the desire to collect a fee. His questions also caused the disclosure of communications concerning the need to actually appear for the Harris County hearing, which he depicted as inadequate relative to the risk of not appearing, as well as confused by the effect of the prior bond revocation. All this evidence was selectively elicited and offensively used in furtherance of the strategy of proving the reasonable-mistake defense.
Bailey’s apparent desire to exclude evidence about the Jefferson County communications constituted an assertion of the privilege as a shield against the use of what turned out to be prejudicial information divulged as part of the broader context of the representation: that Roberts actually had documented his significant efforts to inform and advise her about the consequences of a failure to appear. Those communications were interconnected with communications about the Harris County case in both time and substance. Bailey failed to appear for a court date in Harris County less than a week after she failed to appear in Jefferson County, against Roberts’s strongly worded advice which expressly warned that a failure to appear “necessarily complicates your Harris County case.” To affirmatively rely upon suggested' deficiencies in the evidence of communications about the need to appear in Harris County while excluding the evidence about the need to appear in Jefferson County would leave an unfair and misleading impression that Roberts had not adequately advised Bailey about the serious implications of failing to appear.
The decision to divulge a substantial part of her privileged communications to establish a defense of reasonable mistake in this case — for which Bailey gave express consent — was itself sufficient to waive privilege as to the additional related and relevant interwoven communications. See Tex. R. Evid. 511. That waiver was implied, and the proverbial door was opened, well before Sasser ever crossed [777] the boundary of express consent through the questions now alleged to constitute deficient performance on his part. It was already implied by the time Sasser elicited the communications about the failure to appear in Jefferson County.
A waiver of privilege is narrowly construed,17 and the reasonable-mistake defense was not a blanket waiver of all attorney-client communications, including ones unrelated to the mistake defense.18 But 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 defense she necessarily consented to waiver of all the related and interwoven communications, including those about the importance of appearing in Jefferson County.
In response to this implied-waiver analysis, the dissent attempts to distinguish this appeal from Carmona v. State,
The trial judge ruled that Bailey had waived her privilege. The récord supports that ruling. Like .other evidentiary [778] rulings, a trial court’s ruling determining that a privilege has been waived is reviewed for abuse of discretion, is upheld when it is within the zone of reasonable disagreement, and may not be reversed “solely because the appellate court disagrees with the decision.”20 Considering the totality of the circumstances and the reasonable inferences therefrom, the trial court did not abuse its discretion in finding implied waiver. The record does not provide a firm foundation to affirmatively establish that confidential communications were elicited without Bailey’s actual consent, as the record is conflicted on that subject.21 Ordinarily, we may presume that an appellant’s trial lawyer fully explained the possible consequences of eliciting evidence at trial.22 Thus, at this procedural stage and on this record, there is no need to address whether it would have been constitutionally deficient performance in this case for trial counsel to inadvertently effect an implied waiver of privilege by a selective disclosure of privileged communications, when the record reflects that the [779] selective disclosure was expressly authorized by the client, but the record is silent as to whether counsel actually and correctly advised his client about the legal effect of the selective disclosure (other than counsel’s twice-repeated assurance to the court that he had discussed the matter with the defendant).
Given the statutory defense of reasonable mistake and counsel’s evident strategy in advocating for an acquittal on that basis, this appeal does not conclusively establish that trial counsel’s questions about Jefferson County were so outrageous that no reasonable attorney would have asked them. “[T]rial counsel should ordinarily be afforded an opportunity to explain his actions before being denounced as ineffective,” Rylander v. State, 101 S.W.3d 107, 111 (Tex.Crim.App.2003), and that has not yet happened in this case outside the context of trial counsel’s active, ongoing representation of Bailey.23 Certainly the circumstances here are not comparable to other examples of alleged misconduct that the Court of Criminal Appeals has found insufficiently outrageous to support a finding of deficient performance in the absence of an explanation by counsel.24
Bailey also cannot demonstrate harm under the second prong of Strickland. Despite Sasser’s statements to the effect of “falling on his sword,” after unsuccessfully moving for a mistrial he subsequently made the strategic decision to continue to elicit confidential communications from Roberts and to use them to argue the reasonable-mistake defense. The record does not provide a firm foundation for a claim that Bailey was harmed by this, considering that the evidence was all but conclusive as to her guilt on the failure to appear charge, save the possibility of persuading the jury she had a reasonable excuse.
We overrule Bailey’s first issue alleging ineffective assistance of counsel.
II. Mistrial
In the alternative, Bailey contends that the trial court abused its discretion when it denied her motion for mistrial. She claims that Roberts’s disclosure of privileged information was highly prejudicial, that no curative measures were taken by the court, and that the disclosure likely affected the jury’s verdict.
In addition to our explanation, above, that the privilege already had been waived before the line of questions that gave rise to the motion for mistrial, we also note that the testimony of which Bailey now complains was introduced by her own attorney. “[A] defendant may not complain of evidence elicited by [her] own attorney.” Ex parte Ewing, 570 S.W.2d 941, 948 (Tex.Crim.App. [Panel Op.] 1978); see also Durrough v. State, 672 S.W.2d 860, 873 (Tex.App. — Corpus Christi 1984). Therefore, the trial court did not abuse its discretion in refusing to grant a mistrial.
[780] Conclusion
We affirm the judgment of the trial court.
En banc reconsideration was requested. Tex.R.App. P. 49.7.
A majority of the justices of the Court voted in favor of reconsidering the case en banc.
Footnotes
(A) the waiver is intentional;
(B) the disclosed and undisclosed communications or information concern the same subject matter; and
(C) they ought in fairness be considered together.
Tex R. Evid. 511(b)(1).
469 S.W.3d 762 (Lajuan Cecile Bailey v. State) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.