Bailey, Lajuan Cecile ( 2015 )

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
© 2015 Thomson Reuters. No claim to original U.S. Government Works. 3
Bailey v. State, --- S.W.3d ---- (2015)
[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
© 2015 Thomson Reuters. No claim to original U.S. Government Works. 4
Bailey v. State, --- S.W.3d ---- (2015)
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
© 2015 Thomson Reuters. No claim to original U.S. Government Works. 5
Bailey v. State, --- S.W.3d ---- (2015)
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
© 2015 Thomson Reuters. No claim to original U.S. Government Works. 6
Bailey v. State, --- S.W.3d ---- (2015)
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
© 2015 Thomson Reuters. No claim to original U.S. Government Works. 7
Bailey v. State, --- S.W.3d ---- (2015)
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”).
© 2015 Thomson Reuters. No claim to original U.S. Government Works. 8
Bailey v. State, --- S.W.3d ---- (2015)
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.
© 2015 Thomson Reuters. No claim to original U.S. Government Works. 9
Bailey v. State, --- S.W.3d ---- (2015)
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
© 2015 Thomson Reuters. No claim to original U.S. Government Works. 10
Bailey v. State, --- S.W.3d ---- (2015)
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
© 2015 Thomson Reuters. No claim to original U.S. Government Works. 11
Bailey v. State, --- S.W.3d ---- (2015)
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.
© 2015 Thomson Reuters. No claim to original U.S. Government Works. 12
Bailey v. State, --- S.W.3d ---- (2015)
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
© 2015 Thomson Reuters. No claim to original U.S. Government Works. 13
Bailey v. State, --- S.W.3d ---- (2015)
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
© 2015 Thomson Reuters. No claim to original U.S. Government Works. 14
Bailey v. State, --- S.W.3d ---- (2015)
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
© 2015 Thomson Reuters. No claim to original U.S. Government Works. 15
Bailey v. State, --- S.W.3d ---- (2015)
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
© 2015 Thomson Reuters. No claim to original U.S. Government Works. 16
Bailey v. State, --- S.W.3d ---- (2015)
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
© 2015 Thomson Reuters. No claim to original U.S. Government Works. 17
Bailey v. State, --- S.W.3d ---- (2015)
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.
© 2015 Thomson Reuters. No claim to original U.S. Government Works. 18
Bailey v. State, --- S.W.3d ---- (2015)
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