      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                       NO. 03-13-00175-CR



                               Donovan Scott Morrow, Appellant

                                                  v.

                                   The State of Texas, Appellee


      FROM THE DISTRICT COURT OF MILLS COUNTY, 35TH JUDICIAL DISTRICT
          NO. 2870, THE HONORABLE STEPHEN ELLIS, JUDGE PRESIDING



                             MEMORANDUM OPINION


               After a bench trial, the trial court found appellant Donovan Scott Morrow guilty of

theft of property valued at $20,000 or more but less than $100,000 and sentenced him to ten years

in the Texas Department of Criminal Justice. See Tex. Penal Code § 31.03(a), (e)(5). On appeal,

appellant complains about what he asserts was insufficient evidence, the denial of his motion to

suppress evidence, and ineffective assistance of counsel. Because the parties are familiar with the

facts of the case, its procedural history, and the evidence adduced at trial, we do not recite them in

this opinion except as necessary to advise the parties of the Court’s decision and the basic reasons

for it. See Tex. R. App. P. 47.1, 47.4. Having reviewed the record, we conclude that appellant has

failed to demonstrate any reversible error and affirm the trial court’s judgment of conviction.
                                           DISCUSSION

                                    Sufficiency of the Evidence

                The jury heard evidence that on May 4, 2011, law enforcement officials responded

to the Lee Hoffpauir Superstore in Mills County, Texas because a trailer, four all-terrain vehicles,

and several ATV ignition switches were reported stolen from the premises during the previous night.

Later that morning, the stolen trailer was recovered from appellant in Ellis County, Texas during a

routine traffic stop.1 Inside appellant’s truck, law enforcement officials found a black ski mask and

a map with a route from Waxahachie to Goldthwaite highlighted. When later questioned about being

in possession of the stolen trailer, appellant initially denied any knowledge of or participation in the

theft from the auto dealership. However, he eventually admitted to driving to Goldthwaite in his

truck with several companions, going to the dealership, driving onto the premises, hooking up the

trailer to his truck, and driving it back to Waxahachie. During the interview, appellant gave several

inconsistent statements about the extent of his involvement in the theft. He indicated that he was

“just driving” because an acquaintance had agreed to pay him $500 to help him pick up a trailer.

Yet, appellant commented that he “knew what was going to happen when [they] got there” and

consequently was nervous on the drive down. He also indicated that he did not know anything about

the stolen ATVs because he had “nothing to do with this except for the trailer.” However, while

appellant denied knowing that the ATVs were inside the trailer, he subsequently provided directions

and accompanied law enforcement officials to the location where the stolen ATVs were hidden.




        1
        Appellant’s truck was impounded for the failure to maintain liability insurance; the trailer
was hooked up to his truck.

                                                   2
               At trial, the law enforcement officials from Mills County and Ellis County testified

about their involvement in the investigation, the initial contact with appellant, the subsequent

interview with him (a video recording of which was admitted into evidence), and the recovery of the

stolen property. A representative from the dealership testified about the missing inventory and value

of the stolen items. Finally, Charles Dobbs, appellant’s co-defendant, testified about how he and

appellant perpetrated the theft.2

               Dobbs testified that approximately one month before the theft from the auto

dealership, appellant approached him for help in making some money because he was behind in child

support. According to Dobbs, appellant knew about Dobbs’s history of thefts and thus considered

him someone who could help him out in getting some money. Dobbs indicated that appellant said

he was familiar with the Goldthwaite area and told him that he knew about a place where they could

get some ATVs to sell. Dobbs then described how he and appellant drove down to Goldthwaite

(using a map on which appellant had highlighted the route), went to the dealership, and took a trailer

and four ATVs. He testified that appellant dropped him off at the dealership but returned once

Dobbs broke the padlock on the gate and gained access to the dealership. Dobbs said that after

appellant drove his truck inside, the two of them—both wearing ski masks because the dealership

had cameras—drove the ATVs into a trailer on the property and then hooked the trailer up to

appellant’s truck. Dobbs testified that when they left, appellant drove into a ditch coming out of the

dealership but eventually maneuvered the truck out of the ditch using four-wheel drive. They then




       2
         Dobbs testified pursuant to a plea bargain with the State. In exchange for his plea of guilty
and agreement to testify truthfully against appellant, he was sentenced to ten years in prison.

                                                  3
drove back to Waxahachie to the house of one of Dobbs’s friends where they dropped off the trailer

with the ATVs still inside. Dobbs said that appellant then dropped him off at his home and left. On

cross examination, Dobbs denied that he called appellant and recruited him to help commit this theft

and denied that any others were involved.3 He also denied that he threatened appellant in any way

to keep him from talking about the offense.

                At trial, appellant testified that Dobbs called him to ask him to help pick up a trailer

and to use appellant’s truck to do so. He said that Dobbs agreed to pay him $500 for his help. He

admitted that he drove down to the dealership with Dobbs, entered the property after Dobbs used a

pipe wrench (that appellant gave him) to break the padlock and open the gate, drove his truck up to

the trailer, hooked it up to his truck, and left the dealership with the trailer. He testified that he did

not help put the ATVs in the trailer and had no knowledge that they were inside the trailer.

Appellant also denied highlighting the map recovered from his truck or wearing a ski mask while

at the dealership. Appellant corroborated Dobbs’s testimony about driving into a ditch upon leaving

the dealership, though he indicated it was not as bad as Dobbs described. He also confirmed that

they drove to Dobbs’s friend’s house to drop “the whole load off.” He said it was at that point that

he felt suspicious about what had happened and planned to call the police as soon as he was away

from Dobbs. He explained that he didn’t report it to the officer who pulled him over the next

morning—when he instead lied about where he got the trailer and why he had it—because he “didn’t




        3
           During his interview with law enforcement officials and his testimony at trial, appellant
said that someone named “Ricky” accompanied him and Dobbs.

                                                    4
know what [Dobbs] was capable of doing.”4 Throughout his testimony, appellant maintained that

he did not know a crime was being committed but just thought he was helping out an acquaintance.

                In his brief, appellant essentially concedes that the evidence at trial was sufficient to

demonstrate the theft of the trailer and ATVs from the dealership, as well as his participation in the

events resulting in the theft. However, in his first point of error, he challenges the sufficiency of the

evidence on the issue of intent, asserting that the evidence fails to prove that he perpetrated the

offense with the requisite criminal intent.

                Due process requires that the State prove, beyond a reasonable doubt, every element

of the crime charged. Jackson v. Virginia, 443 U.S. 307, 313 (1979); Rabb v. State, 434 S.W.3d 613,

616 (Tex. Crim. App. 2014). When reviewing the sufficiency of the evidence to support a

conviction, we consider all the evidence in the light most favorable to the verdict to determine

whether, based on that evidence and the reasonable inferences therefrom, any rational trier of fact

could have found the essential elements of the offense beyond a reasonable doubt. Temple v. State,

390 S.W.3d 341, 360 (Tex. Crim. App. 2013); see Jackson, 443 U.S. at 319; Brooks v. State,

323 S.W.3d 893, 899 (Tex. Crim. App. 2010). We review all the evidence in the light most

favorable to the verdict and assume that the trier of fact resolved conflicts in the testimony, weighed

the evidence, and drew reasonable inferences in a manner that supports the verdict. Jackson,

443 U.S. at 318; see Laster v. State, 275 S.W.3d 512, 517 (Tex. Crim. App. 2009). We consider


        4
          The record, however, contains evidence of appellant’s actions that could be construed as
inconsistent with being in fear of Dobbs. When appellant’s truck and the trailer were seized and
impounded during the traffic stop, appellant called Dobbs to come pick him up. According to the
testimony of both appellant and Dobbs, Dobbs then loaned appellant money to restore the liability
insurance on his truck as well as to pay the impound fees.

                                                   5
only whether the fact finder reached a rational decision. Isassi v. State, 330 S.W.3d 633, 638 (Tex.

Crim. App. 2010) (“Our role on appeal is restricted to guarding against the rare occurrence when a

factfinder does not act rationally.” (quoting Laster, 275 S.W.3d at 518)).

               Relying on his self-serving testimony at trial, appellant “contests [that] he had any

conscience objective or desire to engage in any criminal activity.” He highlights his belief that he

was simply helping out an acquaintance for the payment of $500, his testimony that he did not put

the ATVs in the trailer and did not know they were in there, and his cooperation with law

enforcement officials in the recovery of the stolen ATVs. He maintains that his admissions to law

enforcement should be disregarded because they were coerced and “[are] untrustworth[y] because

[he] was nervous, scared, pressured and not allowed to consult an attorney during [the] interviews.”5

Appellant also argues that the evidence is insufficient because “[a] large amount” of the evidence

regarding appellant’s intent came from his co-defendant, Dobbs. He asserts that Dobbs’s testimony

was not credible because of Dobbs’s own involvement in the offense, his criminal history for similar

theft offenses, and his plea-bargain deal with the State.




       5
          Appellant raises the issue concerning the voluntariness of his statements in his second point
of error. However, we reject appellant’s argument here that his incriminating statements to law
enforcement officials “should not be used against him” in our sufficiency review as it is contrary to
the well-established procedure for conducting a legal sufficiency review. See Clayton v. State,
235 S.W.3d 772, 778 (Tex. Crim. App. 2007) (in conducting legal sufficiency review, courts assess
“all of the evidence,” which includes evidence that was properly and improperly admitted); Boston
v. State, 373 S.W.3d 832, 836 (Tex. App.—Austin 2012), aff’d, 410 S.W.3d 321 (Tex. Crim. App.
2013) (“In determining the legal sufficiency of the evidence, we must consider all the evidence in
the record, whether direct or circumstantial, properly or improperly admitted, or submitted by the
prosecution or the defense.”) (citations omitted).

                                                  6
                The fact finder is the sole judge of credibility and weight to be attached to the

testimony of witnesses. Jackson, 443 U.S. at 319; Temple, 390 S.W.3d at 360. The fact finder is

free to accept or reject any or all of the evidence presented by either side. See Lancon v. State,

253 S.W.3d 699, 707 (Tex. Crim. App. 2008); Wesbrook v. State, 29 S.W.3d 103, 111 (Tex. Crim.

App. 2000). Further, as exclusive judge of the facts, the fact finder has full responsibility for

resolving conflicts in the testimony, weighing the evidence, and drawing reasonable inferences

therefrom. See Jackson, 443 U.S. at 319; Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App.

2007). Thus, when the record supports conflicting inferences, we must presume that the trier of fact

resolved any such conflicts in favor of the verdict and defer to that resolution. Jackson, 443 U.S.

at 326; Anderson v. State, 416 S.W.3d 884, 888 (Tex. Crim. App. 2013). We do not reassess witness

credibility. Thornton v. State, 425 S.W.3d 289, 303 (Tex. Crim. App. 2014).

                Here, the record reflects a conflict in the evidence. The trial judge, as the fact finder,

was free to reject any or all of the evidence presented by the defense (or the State) based on his

assessment of witness credibility and was entitled to weigh and resolve the conflict in the evidence.

See Jackson, 443 U.S. at 326; Clayton, 235 S.W.3d at 778. We find no flaw in the judge’s resolution

of this conflict against appellant.

                Evidence is sufficient to support a conviction when, based on the evidence and

reasonable inferences therefrom, any rational fact-finder could have found the essential elements of

the offense beyond a reasonable doubt. Jackson, 443 U.S. at 319; Anderson, 416 S.W.3d at 888.

Viewing the evidence in the light most favorable to the verdict, a rational fact finder could have

found beyond a reasonable doubt that appellant participated in removing the trailer and ATVs from



                                                    7
the dealership with the requisite criminal intent. Therefore, the evidence is legally sufficient to

support his conviction for theft of property. We overrule appellant’s first point of error.


                                   Denial of Motion to Suppress

                On the day of trial, appellant filed a motion to suppress the video recording of his

interview with law enforcement officials. At the conclusion of the suppression hearing,6 the trial

court found that appellant’s statements were freely and voluntarily made and denied the motion to

suppress. In his second point of error, appellant challenges the trial court’s ruling.

                We review a trial court’s ruling on a motion to suppress evidence for an abuse of

discretion, applying a bifurcated standard of review in which we give almost total deference to a trial

judge’s findings of historical fact and credibility determinations that are supported by the record, but

review questions of law de novo. Arguellez v. State, 409 S.W.3d 657, 662 (Tex. Crim. App. 2013);

Crain v. State, 315 S.W.3d 43, 48 (Tex. Crim. App. 2010). When considering whether a statement

was voluntarily made, we look to the totality of the circumstances surrounding its acquisition. Delao

v. State, 235 S.W.3d 235, 239 (Tex. Crim. App. 2007).

                Appellant first argues that his request for a lawyer was ignored and that his invocation

of counsel rendered his statement involuntary. The statement that appellant asserts was an

invocation of his right to counsel occurred at the beginning of the interview with Ellis County

Investigator Glen Smith. Immediately after giving appellant the Miranda warnings, the investigator

asked appellant if he wanted to talk to him. Appellant equivocated about whether he wanted to talk


       6
          Because appellant waived a jury trial, the suppression hearing was conducted during the
bench trial.

                                                   8
to the investigator. When the officer indicated that he needed a “yes or no” answer, the following

exchange occurred:


       Appellant:      I don’t know if I need an attorney or not. Do I need one?

       Smith:          Do you think you need one?

       Appellant:      No, I don’t.


After further discussion about whether appellant wanted to talk to him, Investigator Smith again

indicated he needed a “yes or no” answer as to whether appellant wanted to talk to him:


       Smith:          My question is do you want to talk to me about it (the stolen trailer)?

       Appellant:      I’d love to.


The trial court found that appellant never unequivocally invoked his right to counsel and in fact

waived his right to have counsel present on the recording and agreed to talk with the officers.

We agree.

                An accused has the right to have an attorney present during custodial interrogation.

Edwards v. Arizona, 451 U.S. 477, 482 (1981); see U.S. Const. amends. V, XIV. Once an accused

has invoked that right, police interrogation must stop until counsel has been made available or the

accused himself initiates a dialogue with the police. Edwards, 451 U.S. at 484–85; State v. Gobert,

275 S.W.3d 888, 892 (Tex. Crim. App. 2009). However, not every mention of a lawyer will suffice

to invoke the right to the presence of counsel during questioning. Gobert, 275 S.W.3d at 888;

Dinkins v. State, 894 S.W.2d 330, 351 (Tex. Crim. App. 1995). An ambiguous or equivocal



                                                 9
statement regarding counsel does not require officers to halt the interrogation or even to seek

clarification. Davis v. United States, 512 U.S. 452, 461–62 (1994); Gobert, 275 S.W.3d at 892. A

suspect must articulate his desire for counsel to be present for purposes of custodial interrogation,

and he must do so with sufficient clarity that a reasonable officer under the circumstances would

understand it to be just that. Davis, 512 U.S. at 459; Gobert, 275 S.W.3d at 892–93; see Lucas

v. State, 791 S.W.2d 35, 45 (Tex. Crim. App. 1989) (“The right to counsel is considered invoked

where a person indicates he or she desires to speak to an attorney or have an attorney present during

questioning.”). Whether the particular mention of an attorney constitutes a clear invocation of the

right to counsel during questioning depends on the statement itself and the totality of the surrounding

circumstances. Davis, 512 U.S. at 459; Gobert, 275 S.W.3d at 892.

               Here, appellant expressed uncertainty about needing a lawyer and then asked the

officer if he needed one. The investigator appropriately declined to advise appellant about that

decision and asked appellant if he thought he needed one. Appellant’s response was that he did not

think so. Appellant’s expression of uncertainty and his question to the officer were not an

unambiguous invocation of his right to have counsel present during questioning because a reasonable

officer would not necessarily have understood such statements as a request for an attorney.7 His

question about needing a lawyer—particularly when combined with his unequivocal answer that he

would “love to” talk to the investigator—did not constitute an unequivocal request to have an




       7
         Although the standard is objective, we note that on cross examination, appellant’s counsel
asked Investigator Smith, “Did you believe [appellant] was asking for an attorney?” Smith replied,
“No, sir. He asked me the question if I thought he needed an attorney, but I didn’t give any
legal advice.”

                                                  10
attorney present with him during his custodial interrogation prior to questioning by the investigator.

Under these circumstances, we conclude that the trial court did not abuse its discretion in finding that

appellant did not unambiguously invoke his right to counsel for purposes of custodial interrogation.8

                Appellant next argues that his “mental condition and physical condition during the

interviews”—which he describes as “one of fatigue, nervousness, and scaredness”—rendered his

statement involuntary. At the suppression hearing, appellant testified that when Investigator Smith

began questioning him, he “felt like [he] didn’t really know what was going on” because he was

“nervous,” was “suffering from not enough sleep,” was “physically exhausted,” and was taking

Benadryl. However, Investigator Smith testified that appellant did not appear to be sleep deprived

such that he was unable to talk to him, did not appear to not understand what was going on, and did

not appear to be under the influence of Benadryl or any substance that would prevent him from

understanding what was happening.          Deputy Hammonds corroborated Investigator Smith’s

observations in his testimony. He confirmed that appellant did not appear to be sleep deprived to

the point where he was unable to understand the Miranda warnings the deputy gave nor did appellant

appear to be under the influence of Benadryl or any substance that caused him to not be able to

voluntarily or knowingly waive his rights. Furthermore, the trial court was able to watch the video

recording of the interview.




       8
          We also note that appellant did not make any incriminating statements to Investigator
Smith. Rather, it was only after Deputy Clint Hammonds from Mills County arrived and interviewed
appellant that appellant admitted any wrongdoing. The record reflects that Deputy Hammonds again
provided the Miranda warnings to appellant after which appellant agreed to talk to the deputy.
Appellant made no mention of an attorney after again being advised of his right to counsel.

                                                  11
               Based on the testimony of the officers and the video recording of the interview, the

trial court made the following findings about appellant’s “mental and physical condition:”


       •       Assuming appellant had taken Benadryl at some point, the video of the interview did
               not reflect that appellant “was not able to understand the questions or respond.”

       •       Although appellant “may not have had the normal number of hours of sleep the night
               before,” the sleep deprivation was not caused by law enforcement “nor did it affect
               [appellant] to the point where he was unable to communicate in a reasonable and
               rational way.”


The testimony of both officers demonstrated that appellant was able to effectively communicate with

the officers. And again, the trial court watched and listened to the recorded statement. On the video

recording, appellant can be seen easily conversing with the officers, not appearing confused or

disoriented. At a suppression hearing, the trial judge is the sole trier of fact and exclusive judge of

credibility of the witnesses and the weight to be given to their testimony. St. George v. State,

237 S.W.3d 720, 725 (Tex. Crim. App. 2007); Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App.

1997). Accordingly, the trial court was free to disbelieve appellant’s testimony and find the officers’

testimony, corroborated by the video recording of the interview, to be credible.

               Finally, appellant asserts that the “coercive tactics” of law enforcement “contributed

to the pressure and the involuntary statements.” However, the description of those tactics—“placing

appellant in a closed door room, not letting him leave, confiscating his phone, and following his

movements”—merely demonstrates that even though not yet formally arrested, appellant was in

custody for purposes of the interrogation. The Miranda warnings and article 38.22 warnings, given

twice here by two separate officers before appellant made any incriminating statements, address the



                                                  12
coercive nature of being in custody.9 See Miranda v. Arizona, 384 U.S. 436, 458 (1966) (“Unless

adequate protective devices are employed to dispel the compulsion inherent in custodial

surroundings, no statement obtained from the defendant can truly be the product of his free choice.”);

Herrera v. State, 241 S.W.3d 520, 525 (Tex. Crim. App. 2007) (“The warnings set out by the United

States Supreme Court in Miranda v. Arizona were established to safeguard an uncounseled

individual’s constitutional privilege against self-incrimination during custodial interrogation.”).

Appellant fails to point to any conduct by the law enforcement officials, other than making him feel

that he was not free to leave, that were “coercive.” Absent some coercive police activity, a

confession is not rendered involuntary within the meaning of the Due Process Clause. Oursbourn

v. State, 259 S.W.3d 159, 169–70 (Tex. Crim. App. 2008) (“A confession may be involuntary under

the Due Process Clause only when there is police overreaching.”). The record supports the trial

court’s findings that there was “no showing that [appellant] was in some kind of intimidated state

by the actions of the officers” and that there were no coercive acts or intimidation by

law enforcement.

               The trial court’s ultimate conclusion was that “the credible evidence showed that

appellant freely and voluntarily gave the statement that he gave.” The record supports this finding

and refutes appellant’s claims to the contrary. Viewed in the light most favorable to the trial court’s

ruling, the record reflects that, under the totality of the circumstances, appellant’s statements were

voluntarily made. See Carter v. State, 309 S.W.3d 31, 41–42 (Tex. Crim. App. 2010) (trial court




       9
         In its findings, the trial court found that appellant was “effectively in custody,” but also
found that the officers complied with the procedural requirements for custodial interrogation.

                                                  13
is “sole and exclusive trier of fact and judge of the credibility of the witnesses,” particularly when

motion to suppress is based on voluntariness of confession) (citing Delao, 235 S.W.3d at 238);

Green v. State, 934 S.W.2d 92, 98–99 (Tex. Crim. App. 1996) (in context of determining

voluntariness of confession, trial court is sole factfinder and may elect to “believe or disbelieve any

or all” of evidence presented at hearing on motion to suppress). Therefore, we conclude that the trial

court did not abuse its discretion in denying appellant’s motion to suppress. We overrule appellant’s

second point of error.


                                 Ineffective Assistance of Counsel

               After appellant signed a waiver of jury trial and reached a plea agreement with the

State, his case was removed from the court’s jury docket and set for a plea hearing. On the date of

the plea, appellant’s retained counsel filed a motion to withdraw citing the existence of “a conflict”

and appellant’s desire to hire another attorney. At the hearing on the motion, appellant’s counsel

explained the reasons he sought to withdraw from representing appellant:               difficulties in

communicating with appellant, appellant’s expressed desire to hire new counsel, and appellant’s

refusal to take counsel’s advice. In essence, counsel described the breakdown in the attorney-client

relationship that prompted him to file the motion to withdraw. In his third point of error, appellant

complains that his retained counsel rendered ineffective assistance because counsel’s representations

to the court constituted a disclosure of privileged information in violation of the attorney-client

privilege and his Sixth Amendment constitutional right to due process.

               To establish ineffective assistance of counsel, an appellant must demonstrate by a

preponderance of the evidence both deficient performance by counsel and prejudice suffered by the

                                                  14
defendant. Strickland v. Washington, 466 U.S. 668, 687 (1984); Nava v. State, 415 S.W.3d 289, 307

(Tex. Crim. App. 2013). The appellant must first demonstrate that counsel’s performance fell below

an objective standard of reasonableness under prevailing professional norms. Strickland, 466 U.S.

at 687–88; Nava, 415 S.W.3d at 307. The appellant must then show the existence of a reasonable

probability—one sufficient to undermine confidence in the outcome—that the result of the

proceeding would have been different absent counsel’s deficient performance. Strickland, 466 U.S.

at 694; Nava, 415 S.W.3d at 308. Failure to make the required showing of either deficient

performance or sufficient prejudice defeats the ineffectiveness claim. Strickland, 466 U.S. at 700;

see Perez v. State, 310 S.W.3d 890, 893 (Tex. Crim. App. 2010).

               Appellate review of counsel’s representation is highly deferential; we must “indulge

in a strong presumption that counsel’s conduct was not deficient.” Nava, 415 S.W.3d at 307–08;

see Strickland, 466 U.S. at 686. To rebut that presumption, a claim of ineffective assistance must

be “firmly founded in the record” and “the record must affirmatively demonstrate” the meritorious

nature of the claim. See Menefield v. State, 363 S.W.3d 591, 592 (Tex. Crim. App. 2012);

Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005). Rarely will the trial record by

itself be sufficient to demonstrate an ineffective-assistance claim. Nava, 415 S.W.3d at 308. If trial

counsel has not been afforded the opportunity to explain the reasons for his conduct, we will not find

him to be deficient unless the challenged conduct was “so outrageous that no competent attorney

would have engaged in it.” Id. (quoting Menefield, 363 S.W.3d at 593); Goodspeed, 187 S.W.3d

at 392.




                                                 15
                The attorney-client privilege is an evidentiary privilege and protects against the

compelled disclosure of confidential communications.10          Tex. R. Evid. 503; Pope v. State,

207 S.W.3d 352, 357 (Tex. Crim. App. 2006). This privilege belongs to and protects the client.

Pope, 207 S.W.3d at 357; see also Austin v. State, 934 S.W.2d 672, 673 (Tex. Crim. App. 1996)

(purpose of privilege is to promote communications by protecting against fear that confidences will

later be revealed). Statements and advice of the attorney are just as protected as the communications

of the client. Austin, 934 S.W.2d at 673. Application of the attorney-client privilege depends on

whether the communication sought to be protected is “confidential.” Id.; Williams v. State,

417 S.W.3d 162, 185–86 (Tex. App.—Houston [1st Dist.] 2013, pet. ref’d). A communication is

“confidential” if it is not intended to be disclosed to third persons other than those to whom

disclosure is made in furtherance of the rendition of professional legal services to the client. Austin,

934 S.W.2d at 674; Williams, 417 S.W.3d at 186. The client bears the burden of establishing the

existence of the privilege. Austin, 934 S.W.2d at 674; Williams, 417 S.W.3d at 186.

                We disagree with appellant’s contention that counsel’s representations to the court

disclosed confidential communications. Appellant sought to revoke his waiver of jury trial, fire his

present attorney, and delay the case in order to retain new counsel. The complained-of statements

by counsel explained why appellant should be granted what he sought. In light of the fact that

appellant agreed with and endorsed those representations at the hearing, we find that he has failed




       10
          We initially observe that the complained-of comments of counsel were not offered or
admitted into evidence at appellant’s trial and thus were not evidentiary in nature. Rather, the
comments were made in counsel’s argument to the court in support of his motion to withdraw.
Nevertheless, appellant asserts that counsel’s comments violated this evidentiary privilege.

                                                  16
to demonstrate that any communications he made to counsel that were disclosed in the

representations counsel made on his behalf were intended to be confidential—that is, appellant has

failed to show that these communications were not intended to be disclosed to the court in order to

secure counsel’s withdrawal from representation, the revocation of appellant’s wavier of jury trial,

and time for appellant to obtain new counsel. Accordingly, appellant has failed to establish the

existence of the attorney-client privilege as to the explanations counsel made to the court in support

of his motion to withdraw. See Sanchez v. State, No. 14-07-01067-CR, 2009 WL 838223, at *5

(Tex. App.—Houston [14th Dist.] Mar. 31, 2009, no pet.) (mem. op., not designated for publication)

(“Therefore, even if we assume that the attorney-client privilege applied to appellant and [this

attorney’s] relationship, we cannot say that the challenged testimony was subject to the privilege,

because appellant failed to establish that the statement was intended to be confidential.”). Thus,

appellant has failed to demonstrate that counsel’s conduct in making the representations to the trial

court constituted deficient performance.

               Moreover, appellant has failed to demonstrate that he suffered prejudice as a result

of his retained counsel making the complained-of representations. To prove prejudice, an appellant

must establish a “reasonable probability that, but for counsel’s unprofessional errors, the result of

the proceeding would have been different.”11 Strickland, 466 U.S. at 694; Nava, 415 S.W.3d at 308.


       11
           In his brief, appellant argues that counsel’s purported violation of the attorney-client
privilege violated appellant’s Sixth Amendment right to due process and thus constitutes
constitutional error under the Texas Rules of Appellate Procedure. See Tex. R. App. P. 44.2(a). He
further maintains that if the attorney-client privilege is not a constitutionally protected right, then
counsel’s conduct constitutes non-constitutional error requiring reversal. See Tex. R. App. P.
44.2(b). However, the prejudice prong under Strickland is distinct from a harm analysis to determine
whether trial court error warrants reversal.

                                                  17
A “reasonable probability” is one that is “sufficient to undermine confidence in the outcome.”

Strickland, 466 U.S. at 694; Nava, 415 S.W.3d at 308.

               In his brief, appellant summarily asserts that “[p]rejudice is shown by the fact [that]

Appellant, as suggested by Counsel, was convicted and sentenced to the maximum ten year sentence,

the worst possible result and sentence before the Court.” This conclusory argument fails to satisfy

appellant’s burden under Strickland’s prejudice prong.

               Moreover, appellant’s assertion does not accurately reflect the record. Contrary to

appellant’s contention, his counsel did not suggest that appellant should be convicted and sentenced

to the maximum. Rather, in explaining the breakdown in the attorney-client relationship, counsel

expressed his concerns that if appellant should get ten years, “[appellant] is going to say it was all

[counsel’s] fault.”   He did not suggest that appellant should receive a ten-year sentence.

Furthermore, the record demonstrates that at sentencing, the State specifically argued for a ten-year

sentence based on the fact that Dobbs, appellant’s co-defendant, was sentenced to ten years. When

assessing the sentence, the trial court stated that it found “based on the totality of the evidence,

[appellant’s] prior convictions, the credible testimony at both the guilt-innocence phase as well as

the punishment phase, that the appropriate judgment in this case is 10 years[’] confinement . . . in

the Institutional Division of the Texas Department of Criminal Justice.” Thus, the record does not

support appellant’s contention that the trial court sentenced him to the maximum sentence because

of any comments made by counsel.

               On the record before us, appellant has failed to demonstrate deficient performance

on the part of his trial counsel or that he suffered prejudice because of counsel’s representations to



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the court. He has failed to show that his retained counsel disclosed confidential information in

violation of the attorney-client privilege. Further, appellant has failed to show a reasonable

probability that but for trial counsel’s representations to the trial court in support of his motion to

withdraw, appellant would not have been convicted or his sentence would have been different. Thus,

appellant has not shown himself entitled to reversal based on ineffective assistance of counsel.

Accordingly, we overrule appellant’s third point of error.


                                          CONCLUSION

               We conclude that the evidence is sufficient to support appellant’s conviction, the trial

court did not abuse its discretion in denying appellant’s motion to suppress, and appellant failed to

demonstrate that retained counsel rendered ineffective assistance. Accordingly, we affirm the trial

court’s judgment of conviction.



                                               __________________________________________
                                               Cindy Olson Bourland, Justice

Before Chief Justice Rose, Justices Pemberton and Bourland

Affirmed

Filed: March 13, 2015

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