                                      In The

                              Court of Appeals
                                     For The

                          First District of Texas
                              __________________

                              NO. 01-12-00200-CR
                            ———————————
                    LAJUAN CECILE BAILEY, Appellant
                                        V.
                       THE STATE OF TEXAS, Appellee



                    On Appeal from the 174th District Court
                            Harris County, Texas
                        Trial Court Case No. 1298261



       DISSENTING OPINION ON EN BANC RECONSIDERATION

      Because I believe that no competent attorney would employ a trial strategy

that calls for eliciting privileged communications over his client’s clearly-stated

objection on the record, and because the record clearly supports the conclusion that
defense counsel did so in this case, I respectfully dissent.

     A client may refuse to disclose or allow disclosure of confidential

communications made among the client, the client’s representatives, the attorney,

and the attorney’s representatives to facilitate rendition of professional legal

services to the client. TEX. R. CRIM. EVID. 503(b). A communication is confidential

if it is not intended to be disclosed to persons other than those to whom disclosure

is made to further rendition of professional legal services to the client. TEX. R.

CRIM. EVID. 503(a)(5). The privilege belongs to the client. TEX. R. CRIM. EVID.

503(b),(c); Burnett v. State, 642 S.W.2d 765, 770 (Tex. Crim. App. 1982). The

client can waive the privilege by voluntarily disclosing or consenting to the

disclosure of a significant part of the privileged matter. TEX. R. CRIM. EVID. 511.

Disclosure    by    the   attorney    does       not   waive   the   privilege   absent

the client’s consent. See Cruz v. State, 586 S.W.2d 861, 865 (Tex. Crim. App.

1979). To waive the privilege, the defense attorney must act with his client’s

consent when disclosing the 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).

     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 S.W.2d 768, 771 (Tex.

                                             2
App.—Eastland 1992, pet. ref’d), disapproved on other grounds, Carmona, 941

S.W.2d at 953–54 (holding defendant consented to disclosure of privileged

materials when lawyer disclosed same to deputy in defendant’s presence and

defendant said nothing); Drimmer v. Appleton, 628 F. Supp. 1249, 1251–52

(S.D.N.Y 1986) (holding attorney-client privilege waived when defendant

voluntarily permitted his attorney to testify to privileged information without

objecting); see also Stribling v. State, 542 S.W.2d 418, 419 (Tex. Crim. App.

1976) (holding defendant acquiesced to stipulation entered into by his attorney in

court); Chaney v. State, 464 S.W.2d 653, 656 (Tex. Crim. App. 1971) (same);

Genzel v. State, 415 S.W.2d 919, 921–22 (Tex. Crim. App. 1967) (same); Griffith

v. State, 635 S.W.2d 145, 147 (Tex. App.—Houston [1st Dist.] 1982, no pet.)

(same); see also Alvarado v. State, 912 S.W.2d 199, 214–15 (Tex. Crim. App.

1995) (holding that testimony was admissible as an adoptive admission because

appellant was present when made and clearly called for response); Tucker v. State,

771 S.W.2d 523, 535–36 (Tex. Crim. App. 1988) (same).

     However, in this case, appellant was not silent as to her position on the

attorney-client privilege. She repeatedly stated to the court, “I’m only waiving

privilege to the one case that was filed against me in Brazoria County . . .” and

“[j]ust only that.” And, when her defense counsel started questioning Roberts

outside the scope of this limited waiver of the attorney-client privilege, appellant


                                         3
sent defense counsel a note that said, “We can deal with this without bringing in

Jefferson County.” Defense counsel admits that “[d]uring the exchange with the—

with Mr. Roberts, my client was attempting to tell me something, but because I

was in the heat of questioning, I was intent on the questioning, I wasn’t listing to

her intently.” Defense counsel also stated on the record that his questioning of

Roberts outside the scope of the authorized waiver was “against [appellant’s]

wishes.”

     Based on the record before us, it cannot be said that appellant sat by and

acquiesced in defense counsel’s disclosure of confidential information. Appellant

specifically defined the parameters of her waiver, and when defense counsel

exceeded those parameters, she attempted to stop him. She did everything but

stand up in open court and disrupt the court proceedings in an attempt to preserve

her attorney-client privilege.

     Any suggestion that appellant might have authorized defense counsel to

disclose her privileged communications during whispered conversations with

defense counsel during the trial is not supported, but indeed, is controverted by the

record. The only two people privy to the whispered discussions during trial—

appellant and defense counsel—have already stated on the record that no

agreement to waive privilege was ever reached by appellant and defense counsel.

In this circumstance, no motion for new trial hearing is required—the contents of

                                         4
    those communications between defense counsel and appellant are already in the

    record, and both parties to the communications testified that appellant did not

    waive the privilege.

         Nor is there anything in the record that leads us to conclude that the trial

    court disbelieved defense counsel’s confession of error. It is unreasonable to

    believe that defense counsel would “fall on his sword” by falsely confessing to

    committing legal malpractice and ethical violations in an attempt to provoke a

    mistrial for a client who had not yet been convicted. Indeed, the Court of Criminal

    Appeals has found the first prong of Strickland met, without the necessity of a

    credibility determination, when trial counsel filed an affidavit in which he stated

    that he had no trial strategy in failing to request a jury instruction and that his

    actions were “simply an oversight.” See Ex parte Varelas, 45 S.W.3d 627, 632

    (Tex. Crim. App. 2001).

         Although not raised by the State, either at trial or on appeal, 1 the majority

    concludes that, by raising a “reasonable-excuse” defense strategy, appellant waived

    the attorney-client privilege and “placed in issue all of her communications with

    her lawyer about the need to actually appear for hearings as required by the court.”

    Essentially, the majority concludes that appellant could not waive privilege as to


1
         An appellate court must review a trial court’s ruling on a motion for mistrial in light
         of the arguments before the trial court at the time it ruled. Wead v. State, 129
         S.W.3d 126, 129 (Tex. Crim. App. 2004).
                                                5
the Brazoria County charges without also waiving privilege as to the Jefferson

County charges, and that to attempt to do so would allow appellant to use the

attorney-client privilege as both a sword and a shield.

     In Carmona v. State, 947 S.W.2d 661, 664 (Tex. App.—Austin 1997, no pet.)

the defense hired a polygraph examiner, who conducted both a pretest interview

and a polygraph test on the defendant. Id. at 662–63. Defense counsel disclosed

the results of the polygraph to a prosecutor in an attempt to get the charges

dismissed, but objected at trial when the State attempted to introduce portions of

the pretest interview. Id.    After finding that the defendant consented to the

disclosure of the results to the prosecutor, the court held that “the pretest interview

and the test were essentially one communication[,]” and that the defendant could

“not waive the privilege as to only the favorable parts.” Id. at 664.

     This case is not like Carmona, in which the defendant attempted to use parts

of a confidential conversation to her advantage, while excluding other parts, all in

the defense of the same charged offense. There, both parts of the confidential

conversation were clearly relevant to the charged offense. Here, Roberts

represented appellant in two separate cases—one in Harris County and one in

Jefferson County. Discussions that the two may have had about one case would

not be relevant and admissible as to the other. Indeed, by affirmatively introducing

evidence that appellant planned not to appear in Jefferson County either, defense

                                          6
counsel injected harmful evidence of character conformity that the State generally

would have been unable to present. See TEX. R. EVID. 404(b).

     In contrast, the Brazoria case that appellant consented to disclose was highly

relevant to the Harris County case because it served as the basis for the September

8 revocation of her bond, and it is the September 8 revocation that led to

appellant’s “reasonable belief” argument that she no longer needed to show up in

court on September 21. Appellant believed that she could not “jump” a bond that

had already been revoked. On the day she failed to appear in Jefferson County,

appellant’s bond had not yet been revoked, so its relevance to the issue of

appellant’s “reasonable excuse” defense would be minimal, if any, because of the

differing circumstances proceeding appellant’s failure to appear in each county. In

sum, appellant was not using confidential communications about Brazoria County

as a sword, while using confidential communications about Jefferson County as a

shield, because only Brazoria County had relevance to the charged offense in

Harris County.

     The majority also claims that appellant invoked a “reasonable excuse

defense” by claiming “that [Roberts] failed to tell her that she had to appear[,]” and

that such action was “a plausible trial strategy.” The majority mischaracterizes

appellant’s reasonable excuse defense as an attack on Roberts and argues that her

reasonable excuse defense was “substantially predicated on [Bailey’s] reliance on

                                          7
the counsel she claimed she received from [Roberts].” While appellant did preview

her reasonable excuse defense during voir dire, at no time prior to Sasser’s

unauthorized disclosure did appellant suggest that Roberts was the source of her

belief that she did not have to go to court because her bond had been revoked. The

first evidence regarding a possible source for appellant’s belief that she did not

have to go to trial after her bond was revoked was appellant’s bailbondsman, not

Roberts.   It was only after defense counsel “overstepped [his] bounds” and

mentioned the Jefferson County proceeding was there any evidence suggesting that

Roberts was a source of appellant’s mistaken belief.

     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 or

that Roberts told her that she did not need to appear at trial. Indeed, the first

evidence on this issue was elicited from Stim Bowie, appellant’s bail bondsman,

during the following exchange with defense counsel, Sasser:

     [Sasser]: Do you remember telling me: I was a little confused because
     the Court had revoked her bond on the 8th, but then they forfeited it on
     the 21st, and you said you had never even seen that before; do you
     remember telling me that?

     [Bowie]: Yes, sir, I did.

     ****
     [Sasser]: Sir, why, when I was in your office, did you tell me that when
                                         8
you looked on your computer and saw her bond revoked on September
8th for her case it was a non-issue at that point, she was no longer in
custody, there was a warrant for her arrest, and for you—that nobody
was asking you for the $15,000? Do you remember telling me that?

[Bowie]: Yes, sir, but they changed—it was a forfeiture. There’s a
difference. You’re saying revoked and bond forfeiture. Those are two
different things.

[Sasser]: Sir, remember telling me you didn’t know that at the time?
Remember you told me you just found that out on this case?

[Bowie]: That’s correct.

[Sasser]: What did you find out in this case that you didn’t know
before about the difference between revocation and forfeiture?

[Bowie]: I didn’t understand that if you—if your bond was already
revoked, you still cannot forfeit that bond if you don’t show up on that
day. That’s what I did not know.

[Sasser]: You’ve been doing this for ten years and you didn’t
understand how that worked, did you?

[Bowie]: No, sir.

[Sasser]: Certainly, this defendant wouldn’t be expected to know that?

****
[Sasser]: And did you further tell her that revocation by the Court,
basically, cancels your contract with her, there’s nothing else for her to
perform, no other performance needed in that contract?

[Bowie]: That is correct.

Appellant’s defense was that her belief that the September 8 revocation of her
                                    9
bond excused her from the obligation to appear on September 21 was reasonable,

especially since Bowie, a 10-year-bailbondsman, believed likewise. And, more

importantly, the defense could have be established 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.

     The majority states that “[appellant] stated an intention to limit the scope of

her waiver of the privilege[,]” but “Sasser sought to exploit that attempted

limitation through selective disclosure[.]” Even if I were to agree with the

majority’s conclusion that Sasser’s trial strategy waived appellant’s attorney-client

privileged through his cross-examination of Roberts about the Jefferson County

proceeding, such trial strategy was clearly undertaken without appellant’s consent.

No competent trial attorney would employ a trial strategy that requires eliciting

privileged communications, or waiving a privilege as to those communications,

over his client’s 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, especially since it caused the admission of an

otherwise inadmissible extraneous offense.

     In light of these considerations, I conclude that appellant did not voluntarily

waive the attorney-client privilege as to the Jefferson County proceedings and any

                                          10
discussions with Roberts about that extraneous offense. The decision to waive

attorney-client privilege belongs to the client, and no reasonable attorney would

employ a trial strategy that strips his client of that right. As such, this is one of

those rare instances in which “no reasonable trial strategy could justify trial

counsel’s acts or omissions, regardless of his or her subjective reasoning.” Lopez

v. State, 343 S.W.3d 137, 143 (Tex. Crim. App. 2011). Because the majority holds

otherwise, I respectfully dissent.




                                              Sherry Radack
                                              Chief Justice

Panel consisted of Chief Justice Radack and Justices Massengale and
Huddle.

En banc reconsideration was requested. TEX. R. APP. P. 49.7

A majority of the justices of the Court voted in favor of reconsidering the
case en banc.

The en banc court consists of Chief Justice Radack and Justices Jennings,
Keyes, Higley, Bland, Massengale, Brown, Huddle, and Lloyd.

Justice Massengale, writing for the majority of the en banc court, joined by
Justices Bland, Brown, Huddle, and Lloyd.

Chief Justice Radack, dissenting, joined by Justices Jennings, Keyes, and
Higley.

Publish. TEX. R. APP. P. 47.2(b).

                                         11
