Opinion issued October 7, 2014




                                       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


                                   OPINION

      A jury convicted appellant Lajuan Cecile Bailey of bail-jumping and failure

to appear. See TEX PENAL CODE ANN. § 38.10 (West Supp. 2014). It assessed

punishment at 10 years’ confinement and a $10,000 fine. See id. § 12.34. In two

related issues, Bailey contends that she received ineffective assistance of counsel at
trial in connection with her lawyer’s allegedly unauthorized waiver of the attorney-

client communication privilege, and that the trial court erred in overruling her

motion for mistrial on that basis.

      To establish a claim of ineffective assistance of counsel on direct appeal, an

affirmative demonstration of deficient attorney performance must be firmly

founded in the record. Here, although Bailey contends that she did not consent to

the waiver of privilege in connection with her trial counsel’s cross-examination of

her former lawyer, the trial judge expressly found that such a waiver in fact had

occurred. Without the benefit of an evidentiary hearing on Bailey’s allegations, the

record is not sufficiently developed for us to conclude that the trial judge’s

determination was in error. Accordingly, we affirm the judgment.

                                     Background

      Lajuan Bailey was charged in 2009 with the felony offense of fraudulent use

or possession of identifying information in Harris County. 1 She was charged with a

separate instance of the same crime that same year in Jefferson County. In both

cases, she was released from custody on bond pending trial.




1
      See Act of May 26, 2007, 80th Leg., R.S., ch. 1163, § 1, sec. 32.51, 2007
      Tex. Gen. Laws 3991, 3992; Act of May 23, 2007, 80th Leg., R.S., ch. 1173,
      §§ 1, 2, sec. 32.51, 2007 Tex. Gen. Laws 4012 (current version at TEX.
      PENAL CODE ANN. § 32.51 (West Supp. 2014)).


                                         2
        Bailey hired attorney Brian Roberts to defend her in both cases. A pretrial

conference was scheduled to be held in Harris County on September 7, 2010.

Fearing that the hearing would preclude him from attending a friend’s funeral,

Roberts arranged to have the conference reset. On September 2, he informed

Bailey that the hearing had been rescheduled to September 21.

        On September 8, Bailey’s bond was revoked in Harris County because a new

charge had been filed against her in Brazoria County. The Brazoria County charge,

felon in possession of a firearm, see TEX. PENAL CODE ANN. § 46.04(a) (West

Supp. 2014), had been filed and a warrant had issued for Bailey’s arrest in August

2010.

        Bailey was scheduled to come to court in Jefferson County on September 15,

but she did not appear. On September 21, she did not attend the rescheduled

pretrial conference in Harris County. As a consequence, Roberts withdrew from

representing her, Bailey’s bond in Harris County was forfeited, and an alias capias

was issued for her arrest. Bailey was ultimately indicted by a grand jury for bail-

jumping and failure to appear. She hired a new attorney, Jeffrey Sasser, to defend

her.

        At trial on the bail-jumping charge, the State indicated its intention to call

the original defense attorney, Roberts, as a witness to testify “about information

regarding resets and information passed on by the defense attorney from the Court



                                           3
to his client for purposes of showing up in court.” Roberts informed the court that

he had told the prosecuting attorney that he would not testify unless compelled to

do so by the court. Accordingly, the State moved to compel his testimony.

      The court heard argument on the motion the morning of the first day of trial.

Roberts was present and asserted his unwillingness to divulge information relating

to a former client unless ordered to do so by the court. The State argued that

Roberts could be compelled to testify about his communication of court dates to

Bailey, as the transmission of this information is exempt from the attorney–client

communication privilege under the rule of Austin v. State, 934 S.W.2d 672 (Tex.

Crim. App. 1996). The trial court agreed and granted the State’s motion to compel.

      On the first day of trial, the State called as witnesses Bailey’s bondsman and

several Harris County court employees, including the district court coordinator.

The State relied on these witnesses to establish the basic facts supporting its case:

Bailey was charged with a crime, she had been released on bond, she was obligated

to appear in court on September 21, and she did not appear.

      On the second day of trial, the State called Roberts to the stand, indicating

that it intended to ask him questions about his representation of Bailey in the

Jefferson County case. Defense attorney Sasser objected, arguing that any mention

of Jefferson County and Bailey’s failure to appear for trial in that case would be

“highly prejudicial” and inadmissible under Rule 403. The State argued that the



                                         4
evidence was admissible under Rule 404(b) in order to show motive or intent. The

court ruled that Jefferson County should not be discussed unless the defense

“opened the door.”

      Accordingly, throughout direct examination the State confined its

questioning to the history of the Harris County matter. Roberts testified about the

series of resets in the Harris County case. He explained that he requested the final

reset because a close friend had died and there was a risk the funeral would

coincide with the hearing. He sent a lawyer with whom he shared office space,

Chip Lewis, to obtain the reset. He further confirmed that he had telephoned Bailey

on September 2 and told her about the reset.

      During cross-examination, Sasser initially asked questions critical of

Roberts’s handling of the reset. For example, he asked Roberts why he had sent

another attorney to handle it and why he failed to consult with Bailey prior to

rescheduling. Eventually, Sasser changed subjects to the Brazoria County charge,

prompting further discussion of the attorney–client privilege:

      [Sasser]:       Do you remember having—I know this is real touchy
                      because of the attorney-client privilege. For purposes
                      of my questioning, if I ask you a question that invades
                      attorney-client privilege, you can assume it’s okay to
                      answer. I’ve talked to my client about this. Okay? I
                      want to go into specific conversations. I want to have
                      my client—

      [Prosecutor]:   Judge, may we approach.



                                         5
(Emphasis supplied.) At the bench, the prosecutor then stated: “I think for Mr.

Roberts’s protection, he’s worried about going into this and he needs to hear that

from the client outside the presence of the jury so that Mr. Roberts is comfortable

that she is allowing him to answer the questions.” The judge then excused the jury

from the courtroom, and the discussion continued in Bailey’s presence:

      Sasser:         Judge, at this time I anticipate asking Mr. Roberts
                      about communications that he had with my client
                      regarding the warrants that came up from Brazoria
                      County. Not from Jefferson County, not from
                      Beaumont. We already talked about this earlier, but
                      the fact, you know, [the prosecutor] had come in here
                      and gotten the bond revoked, she had these new cases
                      in Brazoria County, I basically want to talk about the
                      conversations he might have had with her about that
                      and the fact—

      The Court:      You discussed these with your client?

      Sasser:         Yes, sir, I have.

      The Court:      Alright. I will allow you to.

      Sasser:         For my protection, may I get something on the record
                      from my client?

      The Court:      Any objection?

      Prosecutor:     No, Judge. I think for Mr. Roberts, he needs to hear it
                      out of Ms. Bailey’s mouth that she’s waiving the
                      privilege between her and the attorney.

      Sasser:         You just heard what I discussed with the judge.

      The Defendant: Only on one case. That’s the only case that was
                     because I had no other charges. There was only one
                     case filed.

                                          6
Sasser:        Are you waiving the attorney-client privilege by your
               prior attorney, Mr. Roberts, for me to question him
               regarding communications that you may have had
               with him around September 2nd, 2010 regarding your
               outstanding cases, the Brazoria cases?

The Defendant: Yes, one case.

The Court:     All right. Anything further?

Prosecutor:    Not unless Mr. Roberts has questions of his prior
               client or has concerns.

Sasser:        I think it’s clear she waived the privilege at this point.
               I’m offering Mr. Roberts the opportunity if he doesn’t
               feel uncomfortable or doesn’t need to make inquiries
               so we don’t have to take the jury back out.

               Mr. Roberts, do you think that’s adequate for the
               attorney-client privilege for you to answer the
               questions unencumbered by attorney-client privilege
               you used to have with Ms. Bailey?

Roberts:       I didn’t quite hear what it is she’s waiving. I don’t feel
               comfortable testifying to anything unless I hear
               directly from her the particular privileged
               conversations that she’s waiving her privilege to. Are
               you waiving privilege—

The Defendant: I’m only waiving privilege to the one case that was
               filed against me in Brazoria County during this time
               because everything did not happen at the same time.
               Do you understand what I’m saying?

Roberts:       Correct.

The Defendant: There’s only one thing that changed during the whole
               time I was on bond, that is the only thing that I’m
               talking about and referencing, not everything
               subsequent or after the fact.



                                  7
      Sasser:          She had a gun case, the initial case filed in Brazoria
                       County, felony possession of a gun. That was the
                       warrant [the prosecutor] came in and showed you. I
                       would assume. I wasn’t here, Judge. She picked up
                       this new case in Brazoria and you revoked her bond.

      Roberts:         That’s the only thing. Nothing else. I understand.

      The Defendant: Just only that.

      When questioning resumed, Roberts confirmed that during September 2010,

Bailey had an “open warrant” stemming from the Brazoria County charge. Sasser

then asked Roberts whether he informed Bailey of the seriousness of the warrant

and the need to present herself to authorities:

      Q.     Well, did you call her every day before the 21st telling her: Hey
             you need to turn yourself in, you could be arrested any time,
             even coming down to courtroom on the 21st you could be
             arrested; did you ever tell her that?

      A.     I’m sure that we had a conversation that if she has an
             outstanding warrant for arrest in either county when she appears
             here, these deputies will take her into custody.

      ....

      Q.     And she would know she needs to appear in court, even if she
             didn’t have an open warrant, the Court would issue a warrant
             for her arrest if she didn’t appear? There was already a warrant
             for her arrest, so isn’t the purpose of a bond, when you have
             your clients—you sign somebody up, don’t you go through how
             important it is to show up in court?

      A.     Yes.

      Q.     You tell them: If you don’t show up to court, your bond is
             going to be revoked, don’t you?



                                           8
      A.     Yes.

      Q.     Provided it’s already been revoked, so what was the hammer—
             what was the hammer over her head to show up on the 21st, she
             was already going in custody, which is the same thing, could
             have happened on the 8th—excuse me—whenever the Brazoria
             County case was filed. You don’t know when that is, you
             don’t—

      A.     I don’t have that in front of me right now.

      ....

      Q.     You don’t have a note of that in your file, you have a note of
             that when you made the phone call [informing Bailey of the
             reset]?

      A.     No, I don’t have a note of that, Mr. Sasser. She’s still required
             to appear in court. Whether there’s a warrant or not, she’s
             required to appear.

Further questions followed, critically probing Roberts’s investigation of the

Brazoria County charges.

      Sasser next turned to the motion to withdraw filed by Roberts in Harris

County on September 21. After Roberts confirmed that he filed the motion to

withdraw because he knew that Bailey would not be coming to court, Sasser asked

how Roberts knew in advance that she was not going to appear. Roberts replied,

“Y’all might want to approach on that one.” A short discussion at the bench

followed:

      The Court:      What have you got?

      Sasser:         Are you going to rule on Jefferson County?


                                          9
      Prosecutor:     He’s asked the question. You asked the question. I
                      don’t object.

      Sasser:         That’s fine.

      The Court:      Fine.

Sasser then resumed his questioning before the jury:

      Sasser:         The question is – the question is that he already had in
                      the motion to withdraw the reason he was
                      withdrawing is because she didn’t show up for court.
                      I’m asking: How did he know she wasn’t going to
                      show for court.

                      You can answer that.

      Roberts:        Judge?

      The Court:      You may.

      Roberts:        Because she had another setting in Jefferson on
                      September 15 and she informed me she had no
                      intention of appearing in Jefferson County. I also
                      received a phone call from . . . her co-defendant’s
                      mother, who told me the night before that she was not
                      going to appear in court.

      Sasser:         Okay. That who wasn’t going to appear?

      Roberts:        Ms. Bailey was not going to appear.

      Sasser:         In Beaumont [i.e., Jefferson County]?

      Roberts:        Correct.

      Sasser followed with a series of questions about Roberts’s representation of

Bailey in Jefferson County. He elicited testimony about Roberts’s plans with

Bailey to settle both her Harris County and Jefferson County charges together.


                                        10
Roberts confirmed that the authorities in Jefferson County had been willing to

accept a plea bargain whereby Bailey would serve six months in jail. However,

Roberts had been unable to negotiate a comparable agreement with Harris County

officials in order to reach a final resolution to both cases. In this regard, Sasser then

asked:

         Q.   And you’ve been working hard to that end, correct?

         A.   Correct.

         Q.   In fact, my client [Bailey] had actually met with the prosecutor
              and talked with the prosecutor and investigators, correct?

         A.   She did.

         Q.   Okay. So, she was doing her part, wouldn’t you agree, to get
              whatever you were trying to do in her case. I mean, she was
              cooperating?

         A.   That’s –

         Q.   Open for debate?

         A.   Well, she did cooperate. The cooperation was not long after I
              was retained on the case. If you’re asking me about later, you
              might—I don’t know how—what exactly it is that you’re
              asking. I don’t know how to answer.

         Q.   We’ll get through this. It’s all out right now. The jury is going
              to hear about everything. Don’t worry about the attorney-client.
              Everything has been waived at this point.

(Emphasis supplied). Sasser’s subsequent questions attempted to connect the threat

of arrest posed by the Brazoria County warrants with the continuing efforts to

reach a negotiated resolution of the charges in Harris and Jefferson Counties.


                                           11
      The exchange between defense attorney and former-attorney witness

apparently became heated when Sasser asked questions suggesting that Roberts,

along with his office-mate Lewis, had been demanding higher fees of Bailey in the

wake of the Brazoria County charges:

      Sasser:        Basically, weren’t you telling her she needed to come
                     up with the money you wanted for trial – you were set
                     for trial, if you came up with this money, you would
                     take care of all the problems?

      Roberts:       No. That was not the nature of the conversation. Tread
                     lightly if you accuse me of something.

      Sasser:        Excuse me. I’d ask the witness not to argue with me.
                     I’m just doing my job. I’m conducting cross-
                     examination. That’s all I’m doing.

      Roberts:       I understand that, but if there’s an implication of some
                     kind of wrongdoing, Mr. Sasser, you had better be
                     either –

      Sasser:        So, I’m extremely clear –

      The Court:     Are y’all –

      Sasser:        I’m extremely clear about what my client told me –

      The Court:     Just a minute. Go with your questioning. Only your
                     questioning.

      Sasser:        Isn’t it true in this meeting you had in your office that,
                     basically, the subject of it was, look, you need to get
                     this money, you’ve got lots of problems, Ms. Bailey,
                     you’ve got problems in Brazoria County, still got an
                     outstanding case in Beaumont, got the case in
                     Houston, you need to come up with some more
                     money to take care of this, do a no-arrest bond? You
                     never told her that?

                                        12
      Roberts:        That is not correct. If she wanted to hire us on the
                      Brazoria County case, yes, that’s what the discussion
                      was. There was not a discussion for her to give me
                      more money over and above what the contract stated
                      for her Beaumont case and Harris County case, that is
                      not correct.

      Sasser:         So, you didn’t – $7500, that’s in your contract?

      Roberts:        Correct. That is the trial fee for the Jefferson County
                      case and this case.

      Sasser:         And do you have a copy of that contract we can have?

      Roberts:        That’s up to the client if she wants to release that.

           (Pause)

           (Off-the-record discussion between attorney and defendant)

      The Court:      Are we ready to proceed or not?

      Sasser:         Yes, sir.

Thus Roberts denied attempting to charge Bailey more for the cases he had been

retained to handle in Jefferson and Harris Counties, and he also explained that

Lewis did offer to defend her against the fresh charges in Brazoria County for an

additional fee.

      Sasser eventually asked Roberts whether he warned Bailey that she would be

“making a huge mistake” by not appearing and forsaking the opportunity for the

plea bargains he had been negotiating. Roberts replied that on September 14 he had

emailed, texted, and called Bailey to advise her of what would happen if she did

not come to court in Jefferson County. Sasser asked whether Roberts had “that”


                                         13
with him, and Roberts confirmed that he did. At that point, the transcript indicates

another “[o]ff-the-record discussion between attorney and defendant.”

      At Sasser’s request, Roberts then read from his email to Bailey:

      Roberts:        . . . Chip informed me . . . you do not plan on
                      appearing in court at Jefferson County. . . . I strongly
                      advise you to appear in court. You will only make
                      your situation worse by not appearing in court. The
                      likely result, your bond will be revoked, D.A. file a
                      bond jumping charge, which is a third degree felony.
                      Also, necessarily complicates your Harris County
                      case. Again, I’m advising you to appear in court
                      tomorrow.

Roberts further testified that Bailey called him in response to this message. The

cross-examination continued:

      Sasser:         Okay. When she told you that she wasn’t going to
                      Beaumont, did you – did you try to call her and
                      convince her that she needed to you? [sic]

      Roberts:        How much more calling and convincing can I do
                      besides an e-mail, text, and phone conversation that
                      lasted 30 minutes?

      Sasser:         Do you have those records with you?

      Roberts:        I have them right here.

      Sasser:         I’d like to see them.

      Roberts:        Judge, this contains my handwritten notes, which may
                      be privileged. If she’d like to waive that.

      Sasser:         This is your handwritten notes?

      Roberts:        No. Those are my handwritten notes on an e-mail I
                      sent to her.

                                         14
      Sasser:         You actually have the e-mail. Did you print that out?

      Roberts:        That’s what those notes are.

      Sasser:         Thank you.

The prosecutor then asked to approach, and the record indicates the following:

      (At the Bench, on the record)

      The Court:      We’re right back where we started.

      (Off-the-record discussion between attorney and defendant)

      The Court:      Sir, what do you need?

      Prosecutor:     Judge, it’s not an objection. I just want to get it on the
                      record, because it may not be clear on the record, that
                      Mr. Roberts provided you with a document that
                      Mr. Sasser is going to look at. Previous to Mr. Sasser
                      getting it, you ordered the clerk to make a copy.
                      Handwritten notes – as a protection of Mr. Roberts
                      attorney-client privilege revealed. I just want to be
                      clear on the record.

      The Court:      All right. Let the record so reflect.

      Sasser:         May I take a look at them?

      The Court:      They’re coming right back in a minute, as soon as I
                      get them back.

      (Pause)

      (Open court, defendant and jury present)

      The Court:      We’re going to take a 10-minute break. Please go
                      back there for a few minutes.

      (Recess)

      (Open court, no jury, defendant present)

                                         15
The Court:      Let’s get on the record and take care of the matter of
                the privilege. I understand that we have opened the
                door, we have come into both the Jefferson County
                charges and the Brazoria County charges, along with
                the charge here. Is that your understanding.

Prosecutor:     Obviously during the testimony Mr. Sasser asked
                about it, Judge. And Mr. Sasser said very clearly on
                the record his client waived the privilege before
                Mr. Roberts answered the question. However, out of
                an abundance of caution and to make it abundantly
                clear for the record, I think the Court ought to hear
                from the defendant that Mr. Sasser was correct, she
                waived her privilege also as to the Jefferson County
                transactions.

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—

The Court:      Okay. We understand. Do you have anything to add?

Sasser:         No, sir.

The Court:      I think the door has been opened as to both charges.
                They will come in.

Roberts:        I do have an issue with it. Mr. Sasser did clearly say:
                It’s okay, the privilege—my client has waived
                privilege on that.

The Court:      It’s not his privilege. It’s your client’s privilege—
                former client’s privilege. Anything further?

Roberts:        Judge, if she’s—it’s my understanding that she
                advised her lawyer while at counsel table the

                                  16
              privilege is waived. If she’s not waiving that privilege,
              I can’t testify any further to anything on the Jefferson
              County case.

Prosecutor:   Judge, I also do have something to add on the record.
              Mr. Sasser went into a series of questions regarding
              the Jefferson County case after he announced to the
              witness, to the Court, to the jury, to the prosecutor
              that his client had waived the privilege. In my
              opinion, making it very clear his client had waived
              privilege during the course of questioning, which
              lasted several minutes. The defendant was not making
              any attempt to get her attorney to stop asking
              questions about the Jefferson County case. As a
              matter of fact, it was clearly obvious to me she could
              have simply—for purposes of the record, the entire
              time she’s been communicating in writing and orally
              with her lawyer. Very clearly, she’s sitting right next
              to him. I did not see her try to get Mr. Sasser to stop
              asking questions at any time regarding the Jefferson
              County case. She could have clearly stopped
              Mr. Sasser from asking questions in that regard if she
              wanted to assert any type of privilege. Clearly,
              Mr. Sasser is asking the questions in an attempt to
              help her be defended in this case.

The Defendant: Can I say something at this point? See, that’s what
               I’m saying.

The Court:    No. No.

Sasser:       May I respond, Your Honor?

The Court:    You may.

Sasser:       It’s true we were talking during the 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 [the
              prosecutor’s] comment, she did write that down. I am
              her attorney and I did say that, but I think Mr. Roberts

                                17
              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—

Roberts:      I was led to believe she did waive the privilege, which
              puts me in a precarious spot.

Prosecutor:   I do assert the defendant could have simply told her
              lawyer: I’m asserting the privilege. She never did that.
              It was very clear to everybody in the courtroom,
              Mr. Sasser, she’s waiving the privilege. As you
              pointed out, Judge, it’s the defendant’s privilege and
              she did not assert it.

The Court:    Anything further?

Sasser:       I mean, she’s talking to me. I don’t know exactly what
              to tell the Court. She’s telling me she did—

The Court:    I’ll give you two minutes. Talk to your client right
              now.

Sasser:       Judge, the defendant basically has just advised me she
              didn’t realize she had the right to do that, the right to
              disrupt the proceedings or speak out like that, and that
              if she had known she could have, she would have.

Prosecutor:   Clearly, the defendant was talking to her lawyer the
              entire trial. We’re not talking about disrupting the
              proceedings. The defendant could have whispered in
              the defense attorney’s ear or written pages of notes in
              this entire trial. She did not do that when she heard
              her attorney waive the privilege or announce the
              privilege waived. It’s her obligation to assert the
              privilege and she did not do that.

....

Roberts:      Judge, I’m not sure if Ms. Bailey is now saying she’s
              asserting her privilege. I can’t testify further with


                                  18
              regard to Jefferson County, so I don’t know how
              Mr. Sasser wants to handle this.

Prosecutor:   How is the State supposed to handle testimony by
              Jefferson County since it’s already been brought out
              on direct?

....

The Court:    It’s obviously in the record. The question is: Will he
              be able to continue to testify?

Roberts:      I don’t think I can. I was led to believe Ms. Bailey
              waived her privilege to—the Jefferson County
              privilege. She’s saying she didn’t. I cannot testify any
              further on Jefferson County.

Prosecutor:   I’m not saying that I would ask him any additional
              questions. I’m not proposing Mr. Sasser ask any
              additional questions out of an abundance of caution.
              My assertion is I would like it very clear it’s the
              defendant’s privilege to assert. The defendant did not
              assert the privilege after she heard the attorney tell
              Mr. Roberts the privilege was waived, which gave
              Mr. Roberts the opinion that the defendant waived the
              privilege. Therefore, the privilege is waived in effect.
              And out of an abundance of caution, I don’t think we
              should talk about anything in Jefferson County, only
              things in the record, but the defendant has waived her
              privilege.

The Court:    That is the ruling I’m going to make as soon as we get
              back from lunch.

....

Prosecutor:   You said you would make an official ruling regarding
              the privileged matter.

The Court:    I don’t think it’s privileged anymore.



                                19
      Prosecutor:      You believe the defendant has waived her privilege?

      The Court:       I do.

      (Emphasis supplied.) When trial resumed the next day, the parties continued

to debate the privilege issue:

      Sasser:          Your honor, yesterday when we broke—before we
                       broke, I had basically—I was cross-examining Brian
                       Roberts, an attorney called by the prosecution. And
                       before he testified, we had approached—just to kind
                       of recap chronologically what happened yesterday
                       morning before he testified—we approached John, the
                       prosecutor, in an attempt to get in some confidential
                       communications. He was going to try to get in some
                       confidential communications. You ruled those in-
                       camera and ruled those were admissible and the
                       testimony regarding his representation of my client
                       went forward. In that questioning, it also became
                       apparent to me that my client wanted to waive the
                       attorney-client privilege in regard to a particular issue.
                       That issue was the open case in Brazoria County. And
                       she specifically, on the record, got up and waived her
                       privilege to those matters only. When I was cross-
                       examining the witness, I improperly demanded that
                       the witness—or kept insisting that the witness answer
                       a question that violated—that the answer violated the
                       attorney–client privilege in regards to an issue other
                       than the Brazoria County case. During 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
                       listening to her intently. She did make a note on this
                       pad. She was making notes asking: We can deal with
                       this without bringing in Jefferson County at all,
                       correct? And I didn’t see that until after I had already
                       gotten Mr. Roberts to answer that question.




                                          20
              That being said, I went home and did research and it’s
              my opinion, pursuant to Rule 503, that the defendant
              holds the privilege and that she is the only person that
              can waive that privilege. I don’t have the authority to
              waive that privilege. I know that I—on the record and
              during the course of my questioning of Mr. Roberts, I
              know I stated that she had waived the privilege and he
              can answer the question. I certainly don’t blame him
              for doing that, but it was improper for me to say that, I
              think. After speaking with her at the jail, I know it
              was against her wishes.

              Therefore, because of the privileged communications
              that came in to the jury, I feel that she’s been
              prejudiced to an extent that it requires a mistrial.
              Therefore, I’m making a Motion for Mistrial. I know
              it’s unusual for a party that created it, the mistake, to
              ask for a mistrial. However, in this case, I think the
              Court is clear—or should be clear that I didn’t do it
              intentionally. I certainly wasn’t trying to set up a
              scenario where a mistrial would be granted.
              Nevertheless, because of the way things unfolded
              yesterday, I think that—first of all, that if the Court
              doesn’t grant the mistrial, we should not continue any
              more confidential communications that might have
              occurred between my client and Mr. Roberts. And if
              you don’t grant the mistrial, that the portion that was
              read into the record be stricken from the record and
              that the jury be asked to not consider that as evidence
              in this case.

Prosecutor:   Judge, I believe that Mr. Sasser’s assertions have
              changed a small amount from yesterday in that he is
              telling us now that his client did assert her privilege
              after—subsequently to him announcing to the Court,
              to the witness, to the State that the privilege had been
              waived. I don’t recall that being said yesterday. And I
              would testify, if I were on the stand at any point, that
              the defendant has been communicating continually
              with her lawyer via writing and spoken word this


                                21
entire trial. Observations from this distance is that
there are pages of notes she’s written to her lawyer.
And the note that the lawyer—that Mr. Sasser just
read was simply a question: Can we do this without
getting into Jefferson County? That’s not an assertion
of anything. That’s a question.

She heard her client—or her heard her lawyer waive
her privilege and say that her privilege was being
waived, just like everybody else did. And she sat there
for a series of questions—not one or two or three, an
entire topic—and failed to assert her privilege. She,
obviously, believed, because she’s an intelligent
person who’s been communicating with her lawyer
the entire trial, this was effective for her defense.

I think the Court will remember from yesterday that a
substantial portion of the cross-examination that
occurred later were basically accusations against
Mr. Roberts that he was not communicating
sufficiently with his client, that he did not
communicate the court date to his client, which would
have been not illegal, but improper. That he was
trying to bilk additional money or Mr. Lewis was
trying to bilk additional money out of the defendant
based on her situation she had gotten herself into by
the time Jefferson County was brought up. Mr. Sasser,
through his cross-examination – and we all understand
he was doing his best in cross-examination for his
client’s interest – had started to imply, if not directly
accuse via the questioning, that Mr. Roberts had done
something improper. That automatically would have
freed Mr. Roberts up, regardless of what this
defendant wanted to happen, to talk about privileged
communications in order to defend himself. I believe
that part of the law is very clear.

So, there are a few reasons that the Court should not
grant a mistrial and a few reasons why the information
that was gone into was not privileged. Number one,


                  22
                      they were accusing Mr. Roberts of something,
                      therefore, the privilege disappears so he can defend
                      himself. Number two, it was brought up by the
                      defense as a contemplated part of their defense.
                      Number three, the defendant did not assert her
                      privilege after hearing her lawyer say: The privilege is
                      waived, go ahead and answer the question. And she
                      very easily could have done that over the long period
                      of time at some point, Judge.

                      ....

(Emphasis supplied.) The trial court denied the motion to strike and the motion for

mistrial.

      After the court’s ruling on his motions, Sasser briefly continued his cross-

examination of Roberts. He elicited testimony that although Roberts had called,

texted, and emailed Bailey admonishing her to appear in Jefferson County the day

before her scheduled appearance, he did not repeat these communications in regard

to Harris County. In phrasing his questions, Sasser emphasized that Bailey’s bond

had been revoked in Harris County prior to her scheduled appearance on

September 21, whereas in Jefferson County, Bailey’s bond had not been revoked

prior to her failure to appear there on September 15.

      Once the State rested, the defense called Bailey to the stand. Bailey

emphasized that she had not wanted to be taken into custody on the Brazoria

County warrants because she wanted the opportunity “to take care of everything”

and have her “fair day in court.” She also discussed meetings in which Roberts’s



                                         23
officemate, Lewis, offered to defend her against the Brazoria County charge for

$30,000. According to Bailey, in addition to allowing Roberts to attend a funeral,

the rescheduling of the Harris County hearing also served the purpose of giving her

“more time out there in the free world to get money together to give attorneys.”

She thus testified that she did not appear in Jefferson County because she “wasn’t

prepared” for her bond revocation in Harris County, and she was under the

“impression” that her attorney’s “plan” was to consolidate and resolve all of the

pending charges. When Bailey was asked why she did not appear in Harris County

on September 21, she answered, “Because according to the agreement I had on the

bail agreement, my bond was revoked.” Bailey went on to explain that she had a

background in real estate, was familiar with contracts, and thought that her contract

and further obligation to appear had been “voided out” by the revocation of her

bond on September 8. After Bailey gave her testimony, the defense called the

bondsman, who confirmed that the bond had been revoked on September 8, and

that from “the 8th to the 21st she had no bond.”

      In his closing argument, Sasser admitted that Bailey had failed to appear but

argued that the jury should acquit her because she had a reasonable excuse.2 He



2
      The jury charge contained an instruction on the defense of reasonable excuse
      that specifically addressed Bailey’s claim that she had believed the
      revocation of her Harris County bond on September 8 relieved her of the


                                         24
contrasted Bailey’s situation in Jefferson County, where her bond had not been

revoked, and her circumstances in Harris County, where bond had been revoked

prior to her scheduled appearance. He noted that Roberts had specifically warned

Bailey to appear in Jefferson County, but he had not so warned her with respect to

Harris County. He also argued that the bondsman had shared her belief that

revocation of her bond on September 8 had ended her obligation to appear on

September 21. Finally, he emphasized Bailey’s desire to remain free from custody

so that she could gather money to hire Lewis as her attorney in Brazoria County

and consummate her plans with Roberts to resolve the Jefferson County and Harris

County charges together.

      The jury found Bailey guilty, and after a hearing on punishment, imposed a

fine of $10,000 and a prison sentence of ten years. The judge entered judgment on

the jury’s verdict. Bailey filed notice of appeal and Sasser moved to withdraw on

February 21, 2012. On the same document, Bailey represented to the court that she

was indigent, and she asked the court to immediately appoint appellate counsel to

represent her, order a free record be provided, and set bail. The court conducted a

hearing and on February 22, 2012 signed the following order:




      obligation to attend court on September 21. See TEX PENAL CODE ANN.
      § 38.10(c).



                                        25
In summary, the trial court:

   • found that Bailey was indigent for the purpose of employing counsel;
   • granted Sasser’s motion to withdraw;
   • denied the motion to find Bailey indigent (despite having previously so
     found); and
   • purported to grant the motion to appoint appellate counsel; yet
   • left blank the line on which the appointed appellate counsel would have been
     named.

      No motion was filed to clarify or correct the February 22, 2012 order, nor

were any other post-judgment motions filed. On April 25, 2012, this court abated

the appeal and remanded the case for appointment of counsel. Even then, an




                                       26
appellate attorney was not appointed until September 5, 2012, when the Harris

County Public Defender’s office appeared in the trial court. 3

                                      Analysis

       Bailey argues that she received ineffective assistance of counsel, but only

based upon Sasser’s questions which elicited testimony about attorney-client

communications. In the alternative, Bailey contends that the trial court erred by

denying her motion for mistrial on the basis of the alleged privilege violation.

    I. Ineffective assistance of counsel

       Claims that a defendant received ineffective assistance of counsel are

governed by the standard announced by the United States Supreme Court in

Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052 (1984). Strickland

mandates a two-part test: (1) whether the attorney’s performance was deficient,

i.e., did counsel make errors so serious that he or she was not functioning as the


3
       We note that through no apparent fault of her own, Bailey apparently lacked
       any appointed counsel from February 22, 2012 to September 5, 2012.
       Generally, a motion for new trial must be filed no later than 30 days after the
       trial court imposes sentence in open court. TEX. R. APP. P. 21.4. As such, the
       deadline for filing a motion for new trial lapsed during the time when Bailey
       apparently lacked any assistance of counsel. Once appointed, appellate
       counsel had no opportunity to raise her claims of ineffective assistance of
       counsel by motion for new trial, a procedure which would have permitted an
       evidentiary hearing “to consider the facts, circumstances, and rationale
       behind counsel’s actions . . . .” Thompson v. State, 9 S.W.3d 808, 814 (Tex.
       Crim. App. 1999).



                                           27
“counsel” guaranteed by the Sixth Amendment; and if so, (2) whether that

deficient performance prejudiced the party’s defense. 466 U.S. 668, 687, 104 S. Ct.

2052, 2064.

      The adequacy of attorney performance is judged against what is reasonable

considering prevailing professional norms. Id. at 688, 104 S. Ct. at 2065. There is a

presumption that, considering the circumstances, a lawyer’s choices were

reasonably professional and motivated by sound trial strategy. Id. at 689, 104 S. Ct.

at 2065. In the face of this presumption, a criminal defendant has the burden of

showing by a preponderance of the evidence that his attorney failed to provide

reasonably effective assistance. Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim.

App. 2002). Limitations of the record often render a direct appeal ineffective to

adequately raise a claim of ineffective assistance of counsel. See Goodspeed v.

State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005). Critically, “[a]n ineffective-

assistance claim must be firmly founded in the record and the record must

affirmatively demonstrate the meritorious nature of the claim.” Menefield v. State,

363 S.W.3d 591, 592 (Tex. Crim. App. 2012); see also Thompson v. State, 9

S.W.3d 808, 813 (Tex. Crim. App. 1999). That necessary firm foundation is

lacking in this direct appeal.

      Bailey contends that while she waived privilege with regard to charges

against her in Brazoria County, she specifically excluded the Jefferson County



                                         28
charges from the scope of her waiver. She contends that “the evidence shows that

trial counsel’s breach of the attorney-client privilege was without consent.” The

evidence includes her explicit statements on the record that came before and after

the cross-examination at issue. Before her former attorney began answering

questions about their communications, Bailey stated in open court that she was

confining her consent to communications about only one case—the Brazoria

County charges. Then, after her trial attorney’s extensive questioning about

communications relating to the Jefferson County charge, she later reiterated that

she previously had been “very specific in saying” that she “wanted to stick to the

Brazoria County charge.” Moreover, according to Bailey’s trial counsel, in the

midst of the questioning she wrote him a note that said: “We can deal with this

without bringing in Jefferson County.” Based on this information and the principle

that the privilege belongs to the client, that trial lawyer subsequently “fell on his

sword” and admitted his instructions to the witness about the scope of the waiver

were “improper.”

      We acknowledge that this evidence is substantial, but nevertheless it is not

conclusive as to an absence of waiver, particularly in light of the trial court’s ruling

to the contrary. Bailey’s depiction of the record is materially incomplete in its

failure to acknowledge and address the totality of the circumstances and the




                                          29
reasonable inferences therefrom, including other aspects of the record that do

suggest a waiver of the privilege, her statements on the record notwithstanding.

      It was Bailey’s former attorney, Roberts, who provoked the initial privilege

discussion at an early stage by indicating his pretrial refusal to testify about

communications with his former client absent a court order directing him to do so.

This resulted in Bailey’s initial statement that she was limiting her waiver of

privilege to the Brazoria County charges, and Roberts sought clarification to

ensure his clear understanding of the scope of waiver. Subsequently, Roberts was

cross-examined about his former representation of Bailey, with the apparent

defense strategy of discrediting the former attorney in an attempt to convince the

jury that Bailey had a reasonable excuse for her failure to appear. Over the course

of that cross-examination, the record reflects extensive continuing discussion about

the privilege issue in multiple bench conferences outside the presence of the jury.

      Under the pressures of a cross-examination that placed his professionalism

at issue, Roberts continued to display an admirable sensitivity to respecting his

former client’s privilege. When the questioning about his client communications

first veered away from the Brazoria County charges, it was again Roberts who

provoked a careful consideration of how the cross-examination was unfolding.

When asked how he knew that Bailey would not be coming to court for a hearing

in Harris County (such that it was recited in the written motion he had brought with



                                         30
him to court on the date of the hearing as a reason supporting his request to

withdraw), Roberts suggested that counsel “might want to approach” the bench.

The ensuing bench conference yielded no clarity with respect to the privilege, and

Bailey’s trial counsel asked the question again, specifically instructing the witness:

“You can answer that.” Roberts sought guidance from the trial judge, who stated

“You may.”

      From that point, the cross-examination continued to erode Bailey’s

previously stated limitation on the scope of her consent, and Roberts continued to

respond with caution. When probed about Bailey’s level of “cooperation” with

efforts to negotiate resolution of the various charges, Roberts expressed frustration

that he didn’t know what was being asked or how to answer. His continuing

concern about respecting the privilege was acknowledged by defense counsel, who

assured him: “We’ll get through this. It’s all out right now. The jury is going to

hear about everything. Don’t worry about the attorney-client. Everything has been

waived at this point.” The issue arose again when Roberts was cross-examined

about his contractual arrangements with Bailey, and again he resisted questions

about his client communications by stating it was “up to the client” whether she

wanted to make their contract available as evidence.

      The    cross-examination    further progressed     into   an   exploration of

communications about appearing for the Jefferson County proceedings, beginning



                                         31
with an abstract acknowledgment of communications by text message, email, and

phone conversation, which did not initially divulge the substance of those

communications. Then, critically, the record indicates an “[o]ff-the-record

discussion between attorney and defendant,” immediately followed by questions

eliciting the substance of “exactly” what Roberts communicated to Bailey by text

and email. Roberts complied by reading the text of his email correspondence to

Bailey. Defense counsel continued to probe further still by asking to see the actual

documents. Roberts informed the judge that the documents reflected his

handwritten notes, “which may be privileged.” The prosecutor requested a

discussion at the bench, and the record reflects that yet another off-the-record

discussion occurred between Bailey and her trial counsel. Whatever was discussed,

defense counsel then continued to pursue his line of cross-examination by

reiterating his request to see Roberts’s notes. For a reason not explained by the trial

transcript, there then was a “(Pause),” and the trial judge excused the jury to once

again address “the matter of the privilege” on the record. It was during this

conference that Bailey spoke up again and re-asserted her previously expressed

desire to “stick to the Brazoria County charge.”

      On appeal, Bailey attributes great significance to her trial lawyer’s

contemporaneous reaction, which she characterizes as “falling on his sword.” But

at the same time, Roberts expressed his exasperation, spontaneously stating: “I was



                                          32
led to believe she did waive the privilege, which puts me in a precarious spot.” The

prosecutor—an interested party to be sure—added material color to the record by

observing that Bailey’s waiver “was very clear to everybody in the courtroom.”

The prosecutor stated that “the defendant was talking to her lawyer the entire trial,”

and this assertion is corroborated by the trial transcript which, as detailed above, is

punctuated throughout the critical portions of the proceedings with indications of

off-the-record consultation between Bailey and her trial counsel.

      Thus, despite the on-the-record statements of Bailey and her trial counsel,

there was a dispute in the courtroom about what had transpired off the record over

the course of the cross-examination of Roberts. “[T]he totality of the circumstances

and reasonable inferences therefrom may support a finding of waiver.” Carmona v.

State, 941 S.W.2d 949, 954 (Tex. Crim. App. 1997); Wright v. State, 374 S.W.3d

564, 579 (Tex. App.—Houston [14th Dist.] 2012, pet. ref’d). Having witnessed all

of these interactions, the trial judge ruled that Bailey had waived her privilege.

      In sum, the trial record is conflicted and inadequately developed on the

important question of whether Bailey waived her privilege as to conversations she

had with Roberts regarding Jefferson County. While the record does contain some

evidence that defense counsel exceeded the scope of Bailey’s waiver of privilege,

the evidence was disputed, the trial court concluded that the privilege had been

waived, and it expressly so ruled. Like other evidentiary rulings, a trial court’s



                                          33
ruling determining that a privilege has been waived is reviewed for abuse of

discretion, is upheld when it is within the zone of reasonable disagreement, and

may not be reversed “solely because the appellate court disagrees with the

decision.” Cameron v. State, 241 S.W.3d 15, 19–20 (Tex. Crim. App. 2007).4


4
      The dissent reaches the opposite conclusion by accepting Bailey’s and
      Sasser’s statements as the conclusive facts concerning their communications,
      discounting the possibility that Bailey might have in fact authorized the line
      of questioning at issue, and drawing the firm conclusion that she did not
      waive her privilege. As noted above, the trial judge, who was in a better
      position in the courtroom to observe these events as they transpired,
      concluded otherwise, and the dissent does not contend that there was no
      evidence to support that conclusion. The case identified in the dissent, Ex
      parte Varelas, 45 S.W.3d 627 (Tex. Crim. App. 2001), provides no authority
      for overriding the trial judge’s discretion as to this issue. Unlike Bailey’s
      direct appeal, which comes to us without the benefit of a post-trial
      evidentiary hearing, Varelas was an appeal from the denial of a post-
      conviction application for a writ of habeas corpus. Varelas, 45 S.W.3d at
      629. On the direct appeal in that case, the Court of Criminal Appeals had
      rejected the appellant’s claim of ineffective assistance, noting the
      inadequacy of the record. Id. at 632 (citing Varelas v. State, No. 72,178, slip
      op. at 10–11 (Tex. Crim. App. Mar. 4, 1997) (not designated for
      publication)). The crucial Varelas affidavit was submitted after trial had
      concluded, in the context of the post-conviction habeas proceeding. On the
      particular facts of that case, the Court concluded that the trial court’s finding
      that trial counsel had used sound trial strategy in not requesting a limiting
      instruction relating to evidence of the appellant’s extraneous acts was
      “unsupported by the record.” Id. at 632 n.5; see also id. at 646–47 (Holland,
      J., concurring in the denial of rehearing) (“I stand by the Court’s opinion that
      there is no evidence in the record to suggest that the failure to request
      limiting instructions was the result of trial strategy.”). Varelas thus involved
      a record that gave no support to the trial court’s crucial factual finding in
      support of its ruling, and as such it is readily distinguishable from this direct
      appeal and its conflicted record relating to the waiver issue.



                                         34
Under the circumstances of this record, we cannot conclude that the trial court

abused its discretion in finding waiver based on the totality of the circumstances

and the reasonable inferences therefrom, nor can we conclude that the record

otherwise provides a firm foundation that affirmatively establishes that privileged

testimony was elicited without Bailey’s consent.

      We hold that the record in this case does not conclusively establish that trial

counsel’s questions about Jefferson County were so outrageous that no reasonable

attorney would have asked them. We draw this conclusion in light of the

conflicting record with respect to the allegation of deficient performance, including

the trial court’s finding of waiver, as well as the context of the evident defense

strategy in pursuing the line of questioning. We are also mindful that “trial counsel

should ordinarily be afforded an opportunity to explain his actions before being

denounced as ineffective,” Rylander v. State, 101 S.W.3d 107, 111 (Tex. Crim.

App. 2003), and that has not yet happened in this case outside the context of trial

counsel’s active, ongoing representation of Bailey. 5 Finally, we have considered


5
      See also State v. Thomas, 428 S.W.3d 99, 106 (Tex. Crim. App. 2014)
      (“When counsel faces an ineffective-assistance claim, the attorney-client
      privilege is waived, and trial counsel has the opportunity to explain his
      actions.”); Bone, 77 S.W.3d at 836 (“Under our system of justice, the
      criminal defendant is entitled to an opportunity to explain himself and
      present evidence on his behalf. His counsel should ordinarily be accorded an
      opportunity to explain her actions before being condemned as unprofessional
      and incompetent.”).


                                         35
other examples of alleged misconduct that the Court of Criminal Appeals has

found insufficiently outrageous to support a finding of deficient performance in the

absence of an explanation by counsel.6

      Our holding is based solely on our consideration of the deficient-

performance prong of Strickland. As the Court of Criminal Appeals has held, “The

general doctrine that forbids an application for writ of habeas corpus after direct

appeal has addressed the issue does not apply in these situations.” Thompson, 9

S.W.3d at 814. As such, Bailey may resubmit her claim by way of an application

for writ of habeas corpus. Id.; see also Rylander, 101 S.W.3d at 111 n.1; Bone, 77

S.W.3d at 837 n.30; Varelas, 45 S.W.3d at 629–30. “This would provide an

opportunity to conduct a dedicated hearing to consider the facts, circumstances,

and rationale behind counsel’s actions . . . .” Thompson, 9 S.W.3d at 814. Should

Bailey wish to pursue habeas corpus relief and should counsel be appointed to

represent her, it would be her first opportunity as an indigent defendant to develop

her claim of ineffective assistance of counsel at a hearing with the benefit of the

assistance of counsel.



6
      See, e.g., Menefield, 363 S.W.3d at 592 (failure to object to an infringement
      of the client’s right to confront witnesses); Goodspeed, 187 S.W.3d at 391
      (failure to ask questions on voir dire); Thompson, 9 S.W.3d at 814 (failing to
      continue objecting to significant hearsay).



                                         36
      Although there is no constitutional right to appointment of counsel to pursue

a writ of habeas corpus, Ex parte Graves, 70 S.W.3d 103, 110–11 (Tex. Crim.

App. 2002), an indigent defendant may request appointment of counsel to seek a

writ. The judges of county courts, statutory courts, and district courts trying

criminal cases in each county are authorized to appoint counsel for indigent

defendants in the county. TEX. CODE CRIM. PROC. ANN. art. 26.04(a), (b)(1) (West

Supp. 2014). If the court concludes “that the interests of justice require

representation,” it must appoint counsel to aid the defendant in pursuing the writ.

See id. art. 1.051(d). Under similar circumstances, this court once previously

observed: “We cannot presume that the trial judge, if faced with a serious habeas

petition and having legislative authority to appoint and compensate counsel, would

decline to do so.” Muldrew v. State, No. 01–86–00153–CR, 1987 WL 33896, at *4

(Tex. App.—Houston [1st Dist.] Dec. 31, 1987, pet. ref’d). Similarly here, we

equally trust that a trial court judge having legislative authority to appoint and

compensate counsel would not decline to appoint habeas counsel for an indigent

defendant whose appellate counsel was appointed too late to take advantage of her

only prior opportunity for an evidentiary hearing on her claim of ineffective

assistance of counsel.




                                        37
II.   Mistrial

      Bailey argues that the trial court abused its discretion when it denied her

motion for mistrial. She claims that Roberts’s disclosure of privileged information

was highly prejudicial, that no curative measures were taken by the court, and that

the disclosure likely affected the jury’s verdict.

      The testimony of which Bailey complains was introduced by her own

attorney. “[A] defendant may not complain of evidence elicited by his own

attorney.” Ex parte Ewing, 570 S.W.2d 941, 948 (Tex. Crim. App. [Panel Op.]

1978); see also Durrough v. State, 672 S.W.2d 860, 873 (Tex. App.—Corpus

Christi 1984) (“A defendant may not complain of evidence elicited by his own

attorney on cross-examination.”), remanded on other grounds, 693 S.W.2d 404

(Tex. Crim. App. 1985). Therefore, the trial court did not abuse its discretion in

refusing to grant a mistrial. Bailey’s second issue is overruled.




                                           38
                                    Conclusion

      We affirm the judgment of the trial court.




                                             Michael Massengale
                                             Justice

Panel consists of Chief Justice Radack, Justice Massengale, and Justice Huddle.

Chief Justice Radack, dissenting.

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




                                        39
