                                    NO. 07-03-0362-CR

                              IN THE COURT OF APPEALS

                       FOR THE SEVENTH DISTRICT OF TEXAS

                                       AT AMARILLO

                                          PANEL A

                                     AUGUST 16, 2004

                           ______________________________


                       MICHAEL LEROY CAMERON, APPELLANT

                                              V.

                           THE STATE OF TEXAS, APPELLEE


                         _________________________________

           FROM THE 9TH DISTRICT COURT OF MONTGOMERY COUNTY;

            NO. 01-09-05992-CR; HONORABLE FRED EDWARDS, JUDGE

                          _______________________________

Before JOHNSON, C.J., and REAVIS and CAMPBELL, JJ.


                                MEMORANDUM OPINION


       Appellant Michael Leroy Cameron pleaded not guilty, but was convicted of delivery

of a controlled substance after a jury trial. Finding the enhancement allegations contained

in the indictment to be true, the trial court assessed a sentence of 25 years confinement.

With two issues, appellant asserts: (1) the trial court erred in prohibiting his prior attorney
from testifying unless appellant waived the attorney-client privilege; and (2) his trial counsel

was ineffective. We affirm.


       Ron Pickering and Philip Cash were working as undercover narcotics officers at the

Handle Bar nightclub in Conroe on the night of April 26, 2002. Just before midnight,

Pickering was approached by Stacy Warden, appellant’s co-defendant, who asked if he

wanted to smoke some marihuana with her. Pickering declined, but asked if she knew

where he could buy some cocaine. Warden “said she could probably get it” for him, then

placed a call on Pickering’s cell phone. After concluding the phone call, Warden confirmed

that “it [the cocaine] would be there within 15 minutes.” When Pickering inquired about

price, Warden advised him that the drugs would cost $120.


       Shortly before 2:00 a.m., a man later identified as appellant entered the nightclub,

made eye contact with Warden, then walked out. Warden told Pickering that the drugs had

arrived, then Pickering, Cash, and Warden went outside to the parking lot. There, the

officers observed Warden standing by appellant next to a pickup truck. Warden took what

Pickering “assumed was the cocaine” from appellant, “put it in her fist and folded her arms

and walked across the parking lot” to him. She then opened her fist to reveal the cocaine.

Pickering took the drugs from Warden and gave her the money, which she placed “in her

hand and [then she] walked back with her hands crossed like she did when she

approached” him. When Warden reached appellant, she handed him the money. Once

the transaction was complete, Warden, Cash, Pickering, and appellant met at the truck,


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where Warden introduced appellant as Mike. Appellant asked Pickering “how he liked the

blow,” the street name for powder cocaine. After Pickering “told him it was great,” appellant

advised him that “if [he] needed anything more that [he] should contact [Warden].”


       At some point during the evening, Pickering obtained the license plate number of the

truck by which he saw appellant standing. Later that night, Pickering contacted his

dispatcher and “had the plate run” and discovered that the truck was registered to an

individual who previously had been “handled” by the Montague County Sheriff’s

Department. From that information, Pickering developed the owner’s date of birth, height,

and weight, which he transmitted to the Department of Public Safety. After DPS provided

Pickering with a driver’s license photo, he determined that the address on the license was

the same as the address on the vehicle registration. Moreover, Pickering recognized the

person depicted in the driver’s license photo as the same individual with whom he had

come into contact at the nightclub. Having thus developed appellant as the suspect in a

delivery of a controlled substance case, Pickering referred the case to the district attorney’s

office. The grand jury indicted appellant for that offense in September of 2001.


       With his first issue, appellant maintains the trial court erred in refusing to allow his

former trial attorney, Guy Jones, to testify absent a complete waiver of the attorney-client

privilege. Specifically, appellant contends that the testimony he sought to elicit from Jones

was not privileged because it had nothing to do with confidential information between him

and Jones. Rather, appellant maintains that Jones would have “provide[d] beneficial


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defense testimony based on inconsistencies in the State’s file.” Thus, the trial court was

wrong to conclude that such testimony would violate the attorney-client privilege and open

the attorney to unqualified cross-examination by the State.1 We disagree.


       The basis of appellant’s contention under this issue is the following discussion which

occurred during trial outside the presence of the jury:


              Defense:      Your Honor, it came to my attention when I was hired on
                            this case that Mr. Jones when he first looked at the
                            offense report that it was a handwritten report; went
                            back to look at the report a second time and it was a
                            typewritten report. When he looked at it the first time, it
                            was a different colored truck given in the report as there
                            was in the second report. That would be the whole
                            purpose of his testimony.
              Court:        On the basis of his personal memory or his notes?
              Defense:      On the basis of his, actually his notes.
              Court:        Do you have your notes with you?
              Jones:        They’re outside the courtroom, Your Honor.
              Court:        And your client is willing to waive the attorney-client
                            privilege, I assume?
              Defense:      Yes, Your Honor.
              Court:        Well, that’s an interesting question.
              Prosecutor: He’s got to waive it as to all aspects.
              Defense:      Your Honor, may I have a moment?
              Court:        Exactly. I think that if he waives the attorney-client
                            privilege you cannot pick and choose as to what you get
                            to say as to what areas you get to reveal. Once that


       1
        We do not decide if the Lawyer-Client Privilege, Tex. R. Evidence 503 was
implicated.

                                             4
                             attorney-client privilege crack has been opened, it’s a
                             gate, and they’re allowed to now – because he‘s going
                             to have to waive it on the record. I’ll give you a moment
                             to talk to him.
              Defense:       I understand they’ll be allowed to go into any
                             conversations as well.
              Court:         You need to talk to your client about that and if he is
                             going to waive his attorney-client privilege then I want it
                             on the record, especially for the protection of Mr. Jones.
                             What’s your decision?
              Defense:       Your Honor, I don’t believe that it requires any type of
                             waiver. He’s certainly not going to – at this point he’s
                             not going to waive his attorney-client privilege.
              Court:         Then I’m not going to let Mr. Jones testify. Mr. Jones
                             cannot get on the stand and testify as to work product
                             in order to impeach testimony and yet not have a waiver
                             of attorney. You can’t have it both ways. You either get
                             it on or you go to the extent of even asking him did he
                             represent him or anything else. He has to do it. I’m not
                             going to put him in that position or this Court.


Following this exchange, Jones testified during an offer of proof that when he reviewed the

State’s file for the first time, it included a handwritten police report designating the truck as

white. Jones further averred that the second time he reviewed the file, the handwritten

report had been replaced with a typewritten version that described the truck as dark blue.

According to Jones, the two reports were otherwise identical.


       To preserve error for appellate review: (1) a party must make a timely, specific

objection; (2) the objection must be made at the earliest possible opportunity; (3) the

complaining party must obtain an adverse ruling from the trial court; and (4) the issue on

appeal must correspond to the objection made at trial. See Tex. R. App. P. 33.1(a); Dixon

                                               5
v. State, 2 S.W.3d 263, 265 (Tex.Cr.App. 1998). An objection is sufficient to preserve error

for appellate review if it communicates to the trial court what the objecting party wants and

why the objecting party thinks himself entitled to relief, and does so in a manner clear

enough for the court to understand the objection at a time when it is in the best position to

do something about it. See Lankston v. State, 827 S.W.2d 907, 909 (Tex.Cr.App. 1992).

But when it appears from the context that a party failed to fairly and effectively

communicate to the trial court the objection, its basis, or the relief sought, the appellant's

complaint has not been preserved. Id.


       Here, appellant initially stated that he was willing to waive the privilege to allow

Jones to testify and “underst[ood] they’ll [the State] be allowed to go into any conversations

as well.” Later, however, appellant suggested “I don’t believe it requires any type of

waiver.” That general statement was insufficient to apprize the trial court of the basis of the

specific objection he now advances on appeal. In brief, appellant simply failed to inform

the trial court in an effective and timely manner of his objection and entitlement to relief;

thus, he preserved no error for review. Appellant's first issue is overruled.


       By his second issue, appellant asserts his “[t]rial counsel was ineffective in failing

to properly object to hearsay evidence that [he] had guns, and that Stacy Warden was

afraid that [he] ‘would pull one on her.’”2 We disagree. In determining whether counsel's


       2
       With this issue, appellant complains that the objectionable testimony was hearsay.
In the body of his argument, however, he asserts that it was also objectionable on
relevance grounds. See Tex. R. Evid. 403.

                                              6
representation was so inadequate as to violate a defendant's Sixth Amendment right to

counsel, Texas courts adhere to the two-pronged test enunciated in Strickland v.

Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); see Hernandez v.

State, 726 S.W.2d 53, 57 (Tex.Cr.App. 1986). Appellant must first prove that counsel's

performance was deficient, i.e., that his assistance fell below an objective standard of

reasonableness. See McFarland v. State, 928 S.W.2d 482, 500 (Tex.Cr.App. 1996). If

appellant demonstrates deficient assistance of counsel, he must then affirmatively prove

prejudice as a result of the deficient assistance. Id. In proving prejudice, appellant must

demonstrate a reasonable probability that but for counsel's errors, the result of the

proceeding would have been different. Mitchell v. State, 68 S.W.3d 640, 642 (Tex.Cr.App.

2002). A reasonable probability is a probability sufficient to undermine confidence in the

outcome. Hernandez, 726 S.W.2d at 55. In other words, appellant must demonstrate that

the deficient performance prejudiced his defense. Mitchell, 68 S.W.3d at 642. Failure to

make the required showing of either deficient performance or sufficient prejudice defeats

the ineffectiveness claim. Garcia v. State, 887 S.W.2d 862, 880 (Tex.Cr.App. 1994), cert.

denied, 514 U.S. 1021, 115 S.Ct. 1368, 131 L.Ed.2d 223 (1995). The burden is on

appellant to prove by a preponderance of the evidence that counsel was ineffective.

McFarland, 928 S.W.2d at 500.


       The adequacy of defense counsel's assistance is based upon the totality of the

representation rather than by isolated acts or omissions of trial counsel. Id. Furthermore,

appellate review of trial counsel's representation is highly deferential and presumes that

                                            7
counsel's conduct fell within the wide range of reasonable and professional representation.

Bone v. State, 77 S.W.3d 828, 833 (Tex.Cr.App. 2002). Although the constitutional right

to counsel ensures the right to reasonably effective counsel, it does not guarantee errorless

counsel, whose competency or accuracy of representation is to be judged by hindsight.

Ex parte Kunkle, 852 S.W.2d 499, 505 (Tex.Cr.App. 1993). Finally, any allegation of

ineffectiveness must be firmly founded in the record, and the record must affirmatively

demonstrate the alleged ineffectiveness.          Thompson v. State, 9 S.W.3d 808, 813

(Tex.Cr.App. 1999).


       The basis of appellant’s argument under this issue stems from the testimony of

Shelley Cummings, Warden’s roommate, who testified for the defense. Cummings, who

was also at the nightclub on the night of the offense, testified on direct examination that she

did not like appellant “[b]ecause of the way [she] felt he was treating Stacy and the things

that were going on between them.” According to Cummings, she attempted to prevent

Warden from leaving the nightclub with appellant. By this issue, appellant specifically

claims his counsel was ineffective for failing to properly object to the following testimony:


              State:         Okay. Now, you stated initially when you were asked by
                             defense counsel how you knew the Defendant and you
                             stated that he was a friend of yours. Okay. Then you
                             stated later that you don’t like him and he’s not a friend
                             of yours.
              Cummings: When I first met him, yes, we got along and we were
                        friends, but as I got to know him, no, I did not like him.
              State:         Why didn’t you like him?


                                              8
Cummings: Because of the way I felt he was treating Stacy
          [Warden] and the things that were going on between
          them.
State:      What was that?
Defense:    Your Honor, I’m going to object to relevance.
Court:      What’s the relevance?
State:      Judge, I believe her line of testimony is she’s not letting
            her leave, and he [the defense attorney] was trying to
            explore why she didn’t want her to leave. I’m just trying
            to explore that at this time.
Court:      All right. I’ll let you go into it briefly.
State:      Let me ask you the question. Do you remember --
Cummings: Because from what Stacy [Warden] had talked to me
          and the times I talked to her on the phone, she was
          scared of him, and she was my best friend, and I didn’t
          want her in jeopardy.
State:       Why was she afraid of him?
Cummings: I’m not real sure. She never said. I know they fought a
          lot. She made comments about he had guns, and she
          was afraid he would pull one on her. I don’t know that
          he ever did, but she was scared of him.
Defense:     Your Honor, I’m going to object at this point. I think
             we’re getting into this line.
Court:       You need to move on.
State:       So she’s your close friend and your roommate, and you
             understand that she was afraid of the Defendant, but
             she hasn’t fully explained to you why or just things she’s
             shared --
Defense:     Your Honor, I’m going to object, asked and answered
             and relevance.
Court:       It’s a summation question. Move on.




                               9
       Initially, we acknowledge our authority to address an ineffective assistance of

counsel claim on direct appeal where the record is sufficient to prove that counsel’s

performance was deficient. See Robinson v. State, 16 S.W.3d 808, 813 n.7 (Tex.Cr.App.

2000). Notwithstanding appellant’s argument to the contrary, however, this record does

not present one of those rare cases allowing us to do so. As in the majority of instances,

the record here is simply undeveloped and cannot adequately reflect the failings of trial

counsel, if any. Thompson, 9 S.W.3d at 813-14. Furthermore, the portion of the record

reproduced above suggests that appellant’s attorney was, in fact, alert and responsive to

the prosecutor’s line of questioning. Indeed, he objected either to the State’s question or

Cummings’s response no less than three times in the space of one and a half pages of

reporter’s record. In any event, on this record we are not in a position to fairly evaluate

appellant’s claim and decline his invitation to do so. Appellant’s second issue is overruled.


       Accordingly, the judgment of the trial court is affirmed.



                                          Don H. Reavis
                                            Justice


Do not publish.




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