                                                                                PD-1087-15
                                                              COURT OF CRIMINAL APPEALS
                                                                               AUSTIN, TEXAS
                                                              Transmitted 9/21/2015 2:26:18 PM
                                                                Accepted 9/22/2015 1:11:10 PM
                              PD-1087-15                                        ABEL ACOSTA
                                                                                        CLERK

                IN THE COURT OF CRIMINAL APPEALS
                     OF THE STATE OF TEXAS



                        LAJUAN CECILE BAILEY
                           Petitioner/Appellant

                                   v.

                         THE STATE OF TEXAS
                          Respondent/Appellee


On Petition for Discretionary Review from the Fourteenth Court of Appeals
         in Cause No. 01-12-00200-CR, affirming the conviction in
 Cause Number 1298261 from the 174th District Court of Harris County


                PETITION FOR DISCRETIONARY REVIEW




 ORAL ARGUMENT NOT REQUESTED                 ALEXANDER BUNIN
                                             Chief Public Defender
                                             Harris County, Texas

                                             ANGELA CAMERON
                                             Assistant Public Defender
                                             Harris County, Texas
                                             Texas Bar No. 00788672
                                             1201 Franklin, 13th Floor
                                             Houston, Texas 77002
                                             Phone: (713) 368-0016
                                             Fax: (713) 368-9278
   September 22, 2015                        angela.cameron@pdo.hctx.net

                                             Counsel for Appellant
               IDENTITY OF PARTIES AND COUNSEL


APPELLANT:                            Ms. Lajuan Bailey
                                      7723 Secretariat
                                      Houston, Texas 77071

PRESIDING JUDGE:                      Hon. Ruben Guerrero
                                      174th District Court
                                      Harris County, Texas
                                      1201 Franklin Avenue, 19th floor
                                      Houston, Texas 77002


TRIAL PROSECUTOR:                     Mr. John Brewer
APPELLATE PROSECUTOR:                 Mr. Alan Curry
                                      Assistant District Attorneys
                                      Harris County, Texas
                                      1201 Franklin Avenue, 6th floor
                                      Houston, Texas 77002


DEFENSE COUNSEL AT TRIAL:             Mr. Jeffrey Sasser
                                      720 Bayland
                                      Houston, Texas 77009



DEFENSE COUNSEL ON APPEAL:            Ms. Angela Cameron
                                      Assistant Public Defender
                                      Harris County, Texas
                                      1201 Franklin Avenue, 13th floor
                                      Houston, Texas 77002




                              ii
                                                   TABLE OF CONTENTS

Identity of Parties and Counsel..............................................................................................ii

Table of Contents ...................................................................................................................iii

Index of Authorities ............................................................................................................... v

Statement Regarding Oral Argument................................................................................... 1

Statement of the Case ............................................................................................................ 1

Statement of Procedural History .......................................................................................... 1

Grounds for Review............................................................................................................... 2

Reasons for Review ................................................................................................................ 2

Statement of Facts .................................................................................................................. 3

Argument ................................................................................................................................. 5

          The attorney-client privilege belongs to the client and may not be waived
          without the client’s consent. Appellant expressly waived attorney-client
          privilege but limited the waiver to one extraneous offense. Trial counsel
          questioned Appellant’s previous counsel regarding privileged
          communications concerning a second extraneous offense without
          Appellant’s consent.

          Did the Court of Appeals err in determining trial counsel’s disclosure was
          not ineffective assistance of counsel, but instead was an “implied waiver?”

          Does implied waiver under the “offensive use” doctrine apply to the
          general defense of reasonable excuse provided for in Tex. Pen. Code
          §38.10?

          Can implied waiver under Tex. R. Evid. 511 trump Appellant’s expressed
          and specific limitation on the waiver of her attorney-client privilege?

          Did the Court of Appeals improperly shift the burden to Appellant to
          prove she did not waiver her attorney-client privilege?

                                                                    iii
                     The Court of Appeals’ Holding ..................................................................... 5
                     Waiver of Attorney Client Privilege .............................................................. 6
                                Sword v. Shield or “offensive use” doctrine .................................... 6
                                Tex. R. Evid. 511 ................................................................................. 9
                     Court of Appeals improperly placed burden on Appellant ..................... 10
                     No reasonable attorney ................................................................................. 11

PRAYER .................................................................................................................................. 12

CERTIFICATE OF SERVICE .................................................................................................... 12

CERTIFICATE OF COMPLIANCE ........................................................................................... 13

APPENDIX .............................................................................................................................. 14




                                                                     iv
                                                  INDEX OF AUTHORITIES


Cases

Austin v. State, 934 S.W.2d 672 (Tex. Crim. App. 1996) ................................................................. 3

Bailey v. State, -- S.W.3d -- , No. 01-12-00200-CR, 2015 WL 4497773
  (Tex. App. – Houston [1st Dist.] July 23, 2015, no. pet. h). ............................................ passim

Carmona v. State, 941 S.W.2d 949 (Tex. Crim. App. 1997) .................................................. 2, 9, 10

Carmona v. State, 947 S.W.2d 661 (Tex. App. – Austin 1997, no pet.) .......................................... 9

Cruz v. State, 586 S.W.2d 861 (Tex. Crim. App. [Panel Op.] 1979)...................................... 2, 6, 9

Johnson v. State, 120 S.W.3d 10 (Tex. App. – Amarillo 2003)
   aff'd 169 S.W.3d 223 (Tex. Crim. App. 2005) ............................................................................11

Marathon Oil Co. v. Moye, 893 S.W.2d 585 (Tex. App. – Dallas 1994, no writ) ............................ 8

Republic Ins. Co. v. Davis, 856 S.W.2d 158 (Tex. 1993) .................................................................7, 8

Ryser v. State, 453 S.W.3d 17, 30 (Tex. App. – Houston [1st Dist.] 2014, pet. ref’d) ................... 8

Statutes

Tex. Pen. Code §2.03 .......................................................................................................................... 8

Tex. Pen. Code §38.10 ....................................................................................................... 1, 2, 5, 6, 8

Rules

Tex. R. App. 66.3(b). ................................................................................................................ 2, 8, 10

Tex. R. App. P. 66.3(c) .......................................................................................................... 2, 10, 11

Tex. R. Evid. 511 .................................................................................................................... 2, 5, 6, 9




                                                                       v
                    STATEMENT REGARDING ORAL ARGUMENT

      Oral argument is not requested.

                               STATEMENT OF THE CASE

      Ms. Bailey was charged with bail jumping and failure to appear (C.R. at 2). See

Tex. Pen. Code §38.10. Bailey entered a plea of “not guilty.” (3 R.R. at 6). After a jury

trial, Bailey was found guilty and sentenced by a jury to ten (10) years imprisonment in

the Texas Department of Corrections – Institutional Division and a fine of $10,000

(C.R. at 58). Timely notice of appeal was filed (C.R. at 62). No Motion for New Trial

was filed. Appellant counsel was appointed more than eight months after Bailey was

sentenced (Supp. C.R. at 2).

                       STATEMENT OF PROCEDURAL HISTORY

      On October 7, 2015, in a published opinion, a panel of the First Court of Appeals

affirmed Ms. Bailey’s conviction. Bailey moved for en banc consideration which the

Court granted. On July 23, 2015, in a published opinion the majority of the court

affirmed Bailey’s conviction. Chief Justice Radack authored a published dissent which

was joined by three other justices. Bailey v. State, -- S.W.3d.--, No. 01-12-00200-CR, 2015

WL 4497773 (Tex. App. – Houston [1st Dist.], July 23, 2015). After an extension of

time, this petition is timely if filed on or before September 23, 2015.




                                             1
                        GROUNDS FOR REVIEW

The attorney-client privilege belongs to the client and may not be waived
without the client’s consent. Appellant expressly waived attorney-client
privilege but limited the waiver to one extraneous offense. Trial counsel
questioned Appellant’s previous counsel regarding privileged
communications concerning a second extraneous offense without
Appellant’s consent.

Did the Court of Appeals err in determining trial counsel’s disclosure was
not ineffective assistance of counsel but instead an “implied waiver?”

Does implied waiver under the “offensive use” doctrine apply to the
general defense of reasonable excuse provided for in Tex. Pen. Code
§38.10?

Can implied waiver under Tex. R. Evid. 511 trump Appellant’s expressed
and specific limitation on the waiver of her attorney-client privilege?

Did the Court of Appeals improperly shift the burden to Appellant to
prove she did not waiver her attorney-client privilege?



                         REASON FOR REVIEW

The First Court of Appeals has decided an important question of state law
that has not been, but should be settled by the Court of Criminal Appeals.
Tex. R. App. P. 66.3(b).

The First Court of Appeals has decided an important question of state law
in a way that conflicts with this Court’s decision in Carmona v. State, 941
S.W.2d 949 (Tex. Crim. App. 1997) and Cruz v. State, 586 S.W.2d 861 (Tex.
Crim. App. [Panel Op. 1979). Tex. R. App. P. 66.3(c).




                                     2
               STATEMENT OF FACTS RELATIVE TO GROUNDS RAISED

       Ms. Bailey was on bond pending trial for fraudulent use or possession of

identifying information in both Harris and Jefferson counties and was represented by

Brian Roberts on both cases (C.R. at 2) (5 R.R. at 27). Bailey was scheduled to appear

in the Harris County court on September 21, 2010 (3 R.R. at 57-58). However on

September 8, 2010, the trial court revoked Bailey’s bond based on a new charge being

filed against Bailey in Brazoria County. Bailey v. State, -- S.W.3d -- No. 01-12-00200-CR,

2015 WL 4497773, 1 (Tex. App. — Houston [1st Dist.] July 23, 2015, no. pet. h). Bailey

did not appear for the September 21, 2010 court date, which resulted in the indictment

in this case being filed (3 R.R. at 58) (C.R. at 2).

       At trial, the State called Roberts for the purpose of testifying regarding his

communications with Bailey about the September 21, 2010 court date pursuant to the

rule pronounced in Austin v. State, 934 S.W.2d 672 (Tex. Crim. App. 1996). (3 R.R. at 3-

5) (4 R.R. at 31). Roberts testified he talked with Bailey on September 2, 2010 and

advised her of the new court date (4 R.R. at 31).

       Early in the cross-examination of Roberts, the parties approached regarding

Bailey’s attorney-client privilege and Roberts’ ability to answer trial counsel’s questions.

(4 R.R. at 39). Trial counsel stated he intended to ask Roberts about communications

between Roberts and Bailey regarding warrants “from Brazoria County. Not from

Jefferson County, not from Beaumont” (4 R.R. at 39). In an abundance of caution,

Bailey was questioned regarding waiving her attorney-client privilege. At that time she

                                              3
specifically stated that she was waiving the privilege as to the Brazoria County case but

only that and nothing else, “not anything subsequent or after the fact” (4 R.R. at 40-

42).

       Despite this expressed limitation, trial counsel questioned Roberts regarding

Bailey’s Jefferson County case and at one point specifically told Roberts not to “worry

about the attorney-client. Everything has been waived at this point.” (4 R.R. at 60). A

short time later, when the State asked the court to verify from Bailey that trial counsel

was correct when he stated she waived her privilege as to Jefferson County (4 R.R. at

88). Ms. Bailey testified she had not waived privilege stating:

       The Defendant: Am I allowed – I do have a problem. I was very specific
       in saying that I wanted to stick to the Brazoria County charge. I was very,
       very specific in the very beginning. And I don’t know if I can stand up
       and object to something because I’ve never gone to trial before, which is
       why I was very specific about it in the first place. And because I do know,
       like he argued –

(4 R.R. at 89). The court interrupted Bailey stating it understood and stated the door

had been opened to both cases. A discussion between the attorneys continued as to

whether Bailey had waived the privilege during which trial counsel responded as

follows:

       Mr. Sasser: It’s true we were talking during questioning, but in fairness to
       my client, she did – she did write a note here: We can deal with this
       without bringing in Jefferson County. Just in response to John’s [the
       prosecutor] comment, she did write that down. I am her attorney and I
       did say that, but I think Mr. Roberts is right, I don’t think I can – I don’t
       think I can waive her privilege. I think she has to do that. By me stating
       that, I certainly think I overstepped my bounds on that by –


                                             4
(4 R.R. at 91). The discussion between the court and attorneys continued. Ultimately,

the trial court ruled Bailey waived her privilege and the court recessed for the day

without further testimony. (4 R.R. at 95-96). The next morning trial counsel moved for

a mistrial “because of the privileged communications that came in to the jury” (5 R.R.

at 4).

                                       ARGUMENT

         The attorney-client privilege belongs to the client and may not be waived
         without the client’s consent. Appellant expressly waived attorney-client
         privilege but limited the waiver to one extraneous offense. Trial counsel
         questioned Appellant’s previous counsel regarding privileged
         communications concerning a second extraneous offense without
         Appellant’s consent.

         Did the Court of Appeals err in determining trial counsel’s disclosure was
         not ineffective assistance of counsel but instead was an “implied waiver?”

         Does implied waiver under the “offensive use” doctrine apply to the
         general defense of reasonable excuse provided for in Tex. Pen. Code
         §38.10?

         Can implied waiver under Tex. R. Evid. 511 trump Appellant’s expressed
         limitation on the waiver of her attorney-client privilege?

         Did the Court of Appeals improperly shift the burden to Appellant to
         prove she did not waiver her attorney-client privilege?

The Court of Appeals’ Holding

         The Court of Appeals held trial counsel was not ineffective for questioning

Bailey’s prior counsel regarding attorney client communications regarding Bailey’s

pending Jefferson County case because
                                             5
       …by pursuing a strategy and persistently arguing that she had a reasonable
       excuse for her failure to appear based on her communications with her
       lawyer, Bailey did place all her communications with Roberts relevant to
       that particular subject at issue. This understanding of the challenged line of
       questions is essentially conceded on page 4 of the appellant's brief, which
       concedes: “As part of her reasonable explanation defense, Bailey consented
       to waiver of the privilege regarding a charge in Brazoria County.” Despite
       the self-serving limitations stated as part of Bailey's express consent, by
       asserting the [reasonable excuse] defense she necessarily consented to
       waiver of all the related and interwoven communications, including those
       about the importance of appearing in Jefferson County.
Bailey v. State, --S.W.3d--, No. 01-12-00200-CR, 2015 WL 4497773, 11 (Tex. App. –

Houston [1st Dist.], July 23, 2015).

Waiver of Attorney Client Privilege

       Attorney client privilege “is personal to the client and cannot be waived solely

by the attorney.” Cruz v. State, 586 S.W.2d 861, 865 (Tex. Crim. App. 1979). The

majority’s holding disregards this fact when it declares Bailey impliedly waived her

privilege when both counsel and Bailey testified otherwise. The majority’s holding is

based on intertwining of the “offensive use” doctrine, often referred to as using the

privilege as both a sword and a shield, and Tex. R. Evid. 511.

       Sword v. Shield or “offensive use” doctrine

       Despite Bailey’s expressed limitations, the majority found Bailey impliedly waiver

the privilege because it believed Bailey used the attorney client privilege offensively

when she availed herself of the statutory defense of reasonable excuse found in Tex.

Pen. Code 38.10. The majority’s opinion characterizes Bailey’s defense as being

“substantially predicated on her reliance on the counsel she claimed she received from

                                             6
her attorney” and thus relies on the body of case law which finds attorney-client

privilege waived when counsel has been attacked. Bailey at 10. The dissent correctly

points out, however, that prior to the cross-examination of Roberts there is no evidence

that Roberts’ advice was the basis of Bailey’s belief she was excused from appearing on

the assigned court date. Bailey at 13.

       More importantly, however is whether or not the “offensive waiver” doctrine

even applies in this case and if so, what is the appropriate test. The majority states “a

privilege cannot be used simultaneously as a shield and a sword after a partial disclosure

is used as a sword to gain litigation advantage” Bailey at 9. The undersigned has not

found a case from this Court applying the doctrine to attorney-client privilege or

whether or not availing oneself of a statutory general defense constitutes using the

privilege as a sword. The majority of cases applying the offensive use doctrine to the

attorney-client privilege are civil cases involving discovery disputes. These cases are

instructive.

       In Republic Ins. Co. v. Davis, the Texas Supreme Court fashioned a three prong

test to determine in the holder of the privilege in fact utilized the privilege as sword.

Before waiver may be found under the doctrine

       First ….the privilege must seek affirmative relief. Second, the privileged
       information sought must be such that, if believed by the fact finder, in all
       probability it would be outcome determinative of the cause of action
       asserted. Mere relevance is insufficient. A contradiction in position
       without more is insufficient. The confidential communication must go to
       the very heart of the affirmative relief sought. Third, disclosure of the
       confidential communication must be the only means by which the

                                            7
      aggrieved party may obtain the evidence. If any one of these requirements
      is lacking, the trial court must uphold the privilege.

Republic Ins. Co. v. Davis, 856 S.W.2d 158, 163 (Tex. 1993) (internal citations omitted).

      The reasonable excuse defense to bail jumping is found in Tex. Pen. Code

§38.10(c) which begins with the language “[i]t is a defense to prosecution.” Tex. Pen.

Code §2.03(a) provides defenses so labeled are general defenses. The effect of a general

defense being raised merely “fixes the burden of proof on the State to prove every

element of the offense, including disproving the justification defense.” Ryser v. State,

453 S.W.3d 17, 30 (Tex. App. – Houston [1st Dist.] 2014, pet. ref’d). Thus Bailey’s use

of the reasonable excuse defense does not seek affirmative relief and as such the

requirements to find waiver under the offensive use doctrine have not been met. See

Marathon Oil Co. v. Moye, 893 S.W.2d 585, 590 (Tex. App. – Dallas 1994, no writ)

(“[w]hen a defendant relies on privileged information to rebut a plaintiff's cause of

action, the defendant is not seeking affirmative relief that is an offensive use of the

privilege). Appellant would urge this Court to adopt Davis’ “affirmative relief” test as

opposed to the “gain litigation advantage” language utilized by the majority opinion and

find the reasonable excuse defense is not affirmative relief. Because this is an important

issue of state law that this Court has not addressed review should be granted. Tex. R.

App. 66.3(b).




                                            8
       Tex. R. Evid. 511

       Tex. R. Evid. 511 provides that privilege may be waived through the disclosure

of any significant part of the privileged matter. Tex. R. Evid. 511(1). However, the rule

also requires the disclosure must be voluntary or consented to by the privilege holder.

There is no evidence that Bailey voluntarily agreed to trial counsel’s disclosure regarding

the Jefferson County case. Furthermore, as the dissent points out, the cases holding a

defendant acquiesced to the attorney’s waiver involve situations where the defendant

was silent. That is not the case here. On numerous occasions Bailey specifically limited

the extent of her waiver to the Brazoria County case only. As noted by the dissent,

Bailey “did everything but stand up in open court and disrupt the court proceedings in

an attempt to preserve her attorney-client privilege.” Bailey at 13.

       Despite Bailey’s attempts, the majority however found Bailey’s consent to

disclose information regarding the Brazoria County case “was itself sufficient to waive

privilege” Bailey at 10-11. Waiver is not to be “lightly inferred.” Cruz v. State, 586

S.W.2d 861, 865 (Tex. Crim. App. [Panel Op.] 1979). As acknowledged by the majority

“implied waivers are consistently construed narrowly”. Bailey at 11. Yet the court

determined the communications regarding the Jefferson County case were “related and

relevant interwoven communications” and part of the “broader context of [Roberts’]

representation.” The majority reliance on Carmona v. State, 947 S.W.2d 661 (Tex. App.

– Austin 1997, no pet.) to support its position is misplaced as Carmona is distinguishable.

In Carmona, the question was whether the interview before a polygraph was given was

                                             9
so intertwined as to imply waiver of the pre-test interview when Carmona voluntarily

disclosed the polygraph results. Carmona involved one transaction – the giving of a

polygraph. The pretest interview was given immediately prior to the polygraph and as

the dissent points out – both interview and test concerned the same offense. That is

not the case here. Bailey was facing two separate offenses – one in Jefferson and one

in Harris County.

       In essence the court is holding implied waiver trumps express denial. This is

akin to saying a woman who consents to a date and kiss impliedly consents to

intercourse despite specifically saying no. This cannot be. This flies in the face of this

Court’s disfavor with inferring waiver and review should be granted to determine this

important issue of state law. Tex. R. App. Proc. 66.3(b) & (c).

Court of Appeals improperly places burden on Appellant

       The Court of Appeals impermissibly shifted the burden of proof to Bailey to

show she did not consent to the waiver as opposed to requiring the State to affirmatively

prove waiver. In Carmona v. State, 941 S.W.2d 949, 953 (Tex. Crim. App. 1997), this

Court held “the party seeking to benefit from a finding of waiver has the burden to

provide evidence that supports a finding of waiver.” Here it is the State seeking a

finding of waiver and as such the State has the burden of proof. However, the

majority’s opinion specifically states the trial court did not abuse its discretion in finding

implied waiver because “[t]he record does not provide a firm foundation to

affirmatively establish that confidential communications were elicited without Bailey’s

                                              10
actual consent, as the record is conflicted on that subject.” Bailey at 12. The proper

question is whether the State proved waiver, not whether Bailey proved lack of consent.

As the majority opinion is in conflict with this Court’s opinion in Carmona, review

should be granted. Tex. R. App. Proc. 66.3(c).

No reasonable attorney

       The Court of Appeals erred in finding implied waiver. Without a finding that

Bailey’s conduct impliedly waived attorney-client communications regarding Jefferson

County, Bailey’s attorney-client privilege was violated by trial counsel. Trial counsel

admirably confessed his error by stating he got caught up in the heat of battle and

overstepped his boundaries. This admission by counsel belies any suggestion that

counsel had a strategy to question Roberts’ regarding Jefferson County. Nonetheless,

even if it was counsel’s strategy, the strategy must yield to the client’s decision. Just as

“the law is clear that trial strategy must take a back seat to the exercise of the defendant's

constitutional right to take the stand in his own defense,” so too should strategy take a

back seat to the client’s desire whether to waive privilege. Johnson v. State, 120 S.W.3d

10, 18 (Tex. App. Amarillo 2003) aff'd, 169 S.W.3d 223 (Tex. Crim. App. 2005).

Because there was no implied waiver of privilege and no reasonable attorney would

violate attorney-client privilege without the client’s consent and counsel’s actions

resulted in the admission of evidence which destroyed Bailey’s only defense, Bailey was

denied effective assistance of counsel. The Court of Appeals erred in finding otherwise.



                                              11
                                       PRAYER

      For these reasons, Ms. Bailey prays this Court to grant discretionary review.

                                                Respectfully submitted,

                                                ALEXANDER BUNIN
                                                Chief Public Defender
                                                Harris County Texas

                                                /s/ Angela Cameron
                                                ANGELA CAMERON
                                                Assistant Public Defender
                                                1201 Franklin, 13th floor
                                                Houston Texas 77002
                                                (713) 368-0016
                                                TBA No. 00788672
                                                email: angela.cameron@pdo.hctx.net




                              CERTIFICATE OF SERVICE

I certify that I provided a copy of the foregoing petition to the Harris County District

Attorney and the State Prosecuting Attorney via e-filing service on the 21st day of

September 2015.


                                                /s/ Angela Cameron
                                                ANGELA CAMERON




                                           12
                           CERTIFICATE OF COMPLIANCE

      Pursuant to Rule 9.4(i)(3), undersigned counsel certifies that this brief complies

with the type-volume limitations of Tex. R. App. Proc. 9.4(e)(i).

1.        This petition for discretionary review contains 3,689 words printed in a

proportionally spaced typeface.

2.     This brief is printed in a proportionally spaced, serif typeface using Garamond

14 point font in text and Garamond 12 point font in footnotes produced by Microsoft

Word software.

3.   Upon request, undersigned counsel will provide an electronic version of this brief

and/or a copy of the word printout to the Court.

4.   Undersigned counsel understands that a material misrepresentation in completing

this certificate, or circumvention of the type-volume limits in Tex. R. App. Proc. 9.4(j),

may result in the Court's striking this brief and imposing sanctions against the person

who signed it.

                                                 /s/ Angela Cameron
                                                 ANGELA L. CAMERON




                                            13
Bailey v. State, --- S.W.3d ---- (2015)


                                                                             Right of Defendant to Counsel
                     2015 WL 4497773                                    The constitutional right to counsel in a criminal
       Only the Westlaw citation is currently available.                prosecution exists to protect the fundamental
                                                                        right to a fair trial. U.S. Const.Amend. 6.
      NOTICE: THIS OPINION HAS NOT BEEN
      RELEASED FOR PUBLICATION IN THE                                   Cases that cite this headnote
 PERMANENT LAW REPORTS. UNTIL RELEASED,
 IT IS SUBJECT TO REVISION OR WITHDRAWAL.                         [2]   Criminal Law
                                                                            Requisites of fair trial
                  Court of Appeals of Texas,
                    Houston (1st Dist.).                                In context of a criminal trial, a fair trial is one in
                                                                        which evidence subject to adversarial testing is
               Lajuan Cecile Bailey, Appellant                          presented to an impartial tribunal for resolution
                             v.                                         of issues defined in advance of the proceeding.
                The State of Texas, Appellee                            U.S. Const. Amend. 6.

           NO. 01–12–00200–CR | Opinion on                              Cases that cite this headnote
        en banc reconsideration issued July 23, 2015
                                                                  [3]   Criminal Law
Synopsis
                                                                            Prejudice in general
Background: Defendant was convicted in a jury trial in the
174th District Court, Harris County, Ruben Guerrero, J., of             The benchmark for judging any claim of
failure to appear as required for a pretrial hearing. Defendant         ineffective assistance must be whether counsel's
appealed.                                                               conduct so undermined the proper functioning of
                                                                        the adversarial process that the trial cannot be
                                                                        relied on as having produced a just result. U.S.
                                                                        Const.Amend. 6.
Holdings: On motion for en banc reconsideration, the Court
of Appeals, Michael Massengale, J., held that:                          Cases that cite this headnote

[1] defendant's reasonable excuse defense based on her
                                                                  [4]   Criminal Law
former defense counsel's alleged failure to advise her of
                                                                            Standard of Effective Assistance in General
pretrial hearing served to waive the attorney-client privilege
                                                                        The right to effective counsel does not mean
as to communications relating to the representation as a
                                                                        errorless or perfect counsel whose competency
whole, and
                                                                        of representation is to be judged by hindsight.
                                                                        U.S. Const.Amend. 6.
[2] former defense counsel's testimony divulging otherwise
privileged communication did not necessitate declaration of             Cases that cite this headnote
mistrial given defendant's waiver.

                                                                  [5]   Criminal Law
Affirmed.                                                                   Determination
                                                                        An appellate court looks to the totality of the
Radack, J., issued dissenting opinion in which Jennings,                representation and the particular circumstances
Keyes, and Higley, JJ., joined.                                         of each case in evaluating the effectiveness of
                                                                        counsel. U.S. Const.Amend. 6.

                                                                        Cases that cite this headnote
 West Headnotes (23)

                                                                  [6]   Criminal Law
 [1]       Criminal Law


                 © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                             1
Bailey v. State, --- S.W.3d ---- (2015)


              Deficient representation in general                     affirmatively demonstrate the meritorious nature
        The adequacy of attorney performance, for                     of the claim. U.S. Const. Amend. 6.
        purposes of reviewing a claim alleging
                                                                      Cases that cite this headnote
        ineffective assistance, is judged against what is
        reasonable considering prevailing professional
        norms. U.S. Const.Amend. 6.                            [11]   Privileged Communications and
                                                                      Confidentiality
        Cases that cite this headnote                                      Waiver of privilege
                                                                      Privileged Communications and
 [7]    Criminal Law                                                  Confidentiality
            Presumptions and burden of proof in                            Presumptions and burden of proof
        general                                                       The mere disclosure of privileged materials by
        Criminal Law                                                  a defendant's lawyer, by itself, does not give
            Strategy and tactics in general                           rise to a presumption of waiver of the attorney-
        There is a strong presumption that, considering               client privilege; nevertheless, the totality of
        the circumstances, a lawyer's choices were                    the circumstances and reasonable inferences
        reasonably professional and motivated by sound                therefrom may support a finding of waiver. U.S.
        trial strategy, for purposes of reviewing a                   Const. Amend. 6.
        claim alleging ineffective assistance. U.S. Const.
                                                                      Cases that cite this headnote
        Amend. 6.

        Cases that cite this headnote                          [12]   Privileged Communications and
                                                                      Confidentiality
 [8]    Criminal Law                                                       Waiver of privilege
            Presumptions and burden of proof in                       Consistent       with       privilege      rule's
        general                                                       acknowledgement that consent to disclosure of
        In order to rebut presumption of effective                    any significant part of a privileged matter may
        assistance, a criminal defendant has the burden               constitute waiver of the whole, a privilege may
        of showing by a preponderance of the evidence                 not be waived selectively to disclose only such
        that his attorney failed to provide constitutionally          evidence as may be beneficial to the party
        adequate representation. U.S. Const. Amend. 6.                holding the privilege. Tex. R. Evid. 511.

        Cases that cite this headnote                                 Cases that cite this headnote


 [9]    Criminal Law                                           [13]   Privileged Communications and
            Conduct of Trial in General                               Confidentiality
                                                                           Offensive use doctrine
        Limitations of the record often render a direct
        appeal inadequate to raise a claim of ineffective             A privilege cannot be used simultaneously as
        assistance of counsel. U.S. Const. Amend. 6.                  a shield and a sword; after a partial disclosure
                                                                      is used as a sword to gain litigation advantage,
        Cases that cite this headnote                                 the privilege cannot then be used to shield the
                                                                      remainder of the privileged communication. Tex.
                                                                      R. Evid. 511.
 [10]   Criminal Law
            Conduct of Trial in General                               Cases that cite this headnote
        An ineffective assistance claim must be firmly
        founded in the record and the record must
                                                               [14]   Privileged Communications and
                                                                      Confidentiality


               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                        2
Bailey v. State, --- S.W.3d ---- (2015)


              Waiver of privilege                                   former counsel actually had documented his
        With specific reference to the attorney-                    significant efforts to inform and advise defendant
        client communication privilege, it may be                   about the consequences of a failure to appear.
        implicitly waived by raising issues regarding               Tex. R. Evid. 511(1).
        the performance of counsel, particularly if an
                                                                    Cases that cite this headnote
        issue is injected into the case which requires the
        attorney's testimony. Tex. R. Evid. 511.
                                                             [17]   Privileged Communications and
        Cases that cite this headnote                               Confidentiality
                                                                         Waiver of privilege
 [15]   Privileged Communications and                               Implied waivers of privileges are consistently
        Confidentiality                                             construed narrowly.
             Waiver of privilege
                                                                    Cases that cite this headnote
        The scope of an implied waiver of the
        attorney-client privilege is a legal question to
        be determined under the rules of evidence,           [18]   Privileged Communications and
        and thus it is not necessarily defined by                   Confidentiality
        the client's own articulation of the scope of                    Waiver of privilege
        privilege she intends to waive while at the                 Courts must impose a waiver of a privilege no
        same time authorizing disclosure of privileged              broader than needed to ensure the fairness of the
        communications considered helpful to her. Tex.              proceedings before it.
        R. Evid. 511.
                                                                    Cases that cite this headnote
        Cases that cite this headnote

                                                             [19]   Privileged Communications and
 [16]   Privileged Communications and                               Confidentiality
        Confidentiality                                                  Waiver of privilege
             Waiver of privilege
                                                                    A broad waiver of privilege rule would no
        In the course of presenting the statutory                   doubt inhibit the kind of frank attorney-client
        defense of reasonable excuse for her failure                communications and vigorous investigation of
        to appear at a pretrial hearing in criminal                 all possible defenses that the attorney-client and
        proceedings, defendant expressly waived the                 work product privileges are designed to promote.
        attorney-client privilege as to a significant
        part of her communications with her former                  Cases that cite this headnote
        defense counsel, the legal effect of which
        could not be limited selectively to only             [20]   Criminal Law
        those communications that were helpful to                       Privilege
        the defense and instead extended to all other
                                                                    Like other evidentiary rulings, a trial court's
        related attorney communications which were
                                                                    ruling determining that a privilege has been
        relevant to the defense and thereby, in fairness,
                                                                    waived is reviewed for abuse of discretion, is
        became admissible when defendant injected
                                                                    upheld when it is within the zone of reasonable
        those communications into the case; defendant's
                                                                    disagreement, and may not be reversed solely
        apparent desire to exclude evidence about
                                                                    because the appellate court disagrees with the
        communications relating to one case constituted
                                                                    decision.
        an assertion of the privilege as a shield against
        the use of what turned out to be prejudicial                Cases that cite this headnote
        information divulged as part of the broader
        context of the representation, which was that



               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                       3
Bailey v. State, --- S.W.3d ---- (2015)




 [21]   Criminal Law
            Determination
                                                                  OPINION ON EN BANC RECONSIDERATION *
        Trial counsel should ordinarily be afforded an
        opportunity to explain his actions before being       *      We grant appellant's motion for en banc reconsideration,
        denounced as ineffective. U.S. Const. Amend. 6.
                                                                     withdraw our opinion of October 7, 2014, vacate our
                                                                     judgment of the same date, and issue this en banc opinion
        Cases that cite this headnote
                                                                     and judgment in their stead. See TEX.R.APP. P. 49.7.

 [22]   Criminal Law                                          Michael Massengale, Justice
            Counsel
                                                               *1 A jury convicted appellant Lajuan Cecile Bailey of
        Former defense counsel's disclosure of
                                                              failure to appear as required for a pretrial hearing. See TEX.
        privileged information did not necessitate
                                                              PENAL CODE ANN. § 38.10. It assessed punishment at 10
        declaration of mistrial, in prosecution for failure
                                                              years' confinement and a $10,000 fine. See id. § 12.34.
        to appear as required for a pretrial hearing, as
        the privilege already had been waived before the
                                                              It was undisputed that Bailey failed to appear as required for
        line of questions that gave rise to defendant's
                                                              a pretrial hearing, and her trial strategy was to invoke the
        motion for mistrial, and the testimony of which
                                                              statutory defense available when “the actor had a reasonable
        defendant complained was introduced by her
                                                              excuse” for her failure to appear in accordance with the
        own attorney.
                                                              terms of her release. See id. § 38.10(c). She affirmatively
        Cases that cite this headnote                         introduced evidence of communications with her lawyer in an
                                                              attempt to establish her excuse that the lawyer failed to tell
                                                              her that she had to appear—indeed, there was no conceivable
 [23]   Criminal Law
                                                              other purpose for cross-examining her attorney. That was
            Admission of evidence
                                                              a plausible trial strategy, which entailed an implied waiver
        A defendant may not complain of evidence              of the attorney-client privilege because it placed in issue all
        elicited by her own attorney.                         of her communications with her lawyer about the need to
                                                              actually appear for hearings as required by the court.
        Cases that cite this headnote

                                                              Bailey now contends that she received ineffective assistance
                                                              of counsel at trial. In the face of a disputed factual
                                                              record and without the benefit of a post-trial evidentiary
On Appeal from the 174th District Court, Harris County,       hearing, she claims that her trial counsel divulged privileged
Texas, Trial Court Case No. 1298261; Ruben Guerrero,          communications without authorization. To establish such
Judge                                                         a claim on direct appeal, an affirmative demonstration of
                                                              deficient attorney performance and resulting harm must be
Attorneys and Law Firms
                                                              firmly founded in the record. Although Bailey contends that
Angela L. Cameron, Assistant Public Defender, Houston, TX,    she did not consent to the waiver of privilege in connection
for Appellant.                                                with her trial counsel's cross-examination of her former
                                                              lawyer, the trial judge expressly found that such a waiver in
Devon Anderson, District Attorney, Alan Curry, Donald W.      fact had occurred. That evidentiary ruling is supported by the
Rogers, Jr., Assistant District Attorney, Houston, TX, for    record.
Appellee.
                                                              We hold that the trial court did not abuse its discretion to
Panel consisted of Chief Justice Radack and Justices
                                                              conclude that in the course of presenting the statutory defense
Massengale and Huddle.
                                                              of reasonable excuse, Bailey expressly waived privilege as to
                                                              a significant part of her communications with her attorney,
                                                              and the legal effect of the waiver could not be limited



               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                               4
Bailey v. State, --- S.W.3d ---- (2015)


selectively to only those communications that were helpful to       Jefferson County. In both cases, she was released from
the defense. As a matter of law, the waiver also extended to all    custody on bond pending trial.
other related attorney communications which were relevant to
the defense and thereby, in fairness, became admissible when        3      See Act of May 22, 2007, 80th Leg., R.S., eh. 631, § 1,
Bailey injected those communications into the case. Because                sec. 32.51, 2007 Tex. Gen. Laws 1204; Act of May 26,
Bailey does not argue and the record does not reveal any other             2007, 80th Leg., R.S., eh. 1163, § 1, sec. 32.51, 2007 Tex.
plausible strategy to defend the charge of failure to appear,              Gen. Laws 3991, 3992; Act of May 25, 2007, 80th Leg.,
there also has been no demonstration of harm.                              R.S., ch. 1173, §§ 1–3, sec. 32.51, 2007 Tex. Gen. Laws
                                                                           4012 (current version at TEX. PENAL CODE § 32.51).
Bailey also contends that the trial court erred in overruling
her motion for mistrial based on the disclosure of her              A. Circumstances of failure to appear
attorney-client communications. The trial court acted within        Bailey hired attorney Brian Roberts to defend her in both
its discretion to deny the mistrial because the testimony of        cases. A pretrial conference was scheduled to be held in
which Bailey complains was introduced by her own attorney.          Harris County on September 7, 2010. Fearing that the hearing
                                                                    would preclude him from attending a friend's funeral, Roberts
We affirm the judgment.                                             arranged to have the conference reset. On September 2, he
                                                                    informed Bailey that the hearing had been rescheduled to
                                                                    September 21.

                          Background
                                                                    On September 8, Bailey's bond was revoked in Harris County
Our review of an ineffective-assistance claim on direct appeal      because a new charge had been filed against her in Brazoria
requires evaluation of allegedly deficient performance in           County. A warrant had issued for Bailey's arrest on that
context of the totality of the representation and in light of the   charge, felon in possession of a firearm. See TEX. PENAL
                                                                    CODE § 46.04(a).
entire record. 1 To the extent this appeal implicates the trial
court's evidentiary determination that a privilege was waived,
                                                                    Bailey was scheduled to appear for a separate hearing in
we owe “almost total deference” to an implied finding of any
                                                                    Jefferson County on September 15, 2010. She did not appear.
facts that would support the ruling and would be supported
                                                                    Her Jefferson County bond was forfeited, a capias was issued,
by the record, especially when such findings are based on an
                                                                    and Roberts withdrew from representing her in that case. On
evaluation of credibility and demeanor. 2                           September 21, she did not attend the rescheduled pretrial
                                                                    conference in Harris County. As a consequence, Roberts
1       See, e.g., Okonkwo v. State, 398 S.W.3d 689, 693            withdrew from representing her in the Harris County case as
        (Tex.Crim.App.2013) (appellate review focuses on the        well, and the State charged Bailey with the offense of failure
        objective reasonableness of counsel's actual conduct        to appear.
        “in light of the entire record”); Thompson v. State, 9
        S.W.3d 808, 813 (Tex.Crim.App.1999) (“An appellate
        court looks to the totality of the representation and the   B. Voir dire
        particular circumstances of each case in evaluating the     While selecting the jury, defense counsel Jeffrey Sasser
        effectiveness of counsel.”).                                previewed Bailey's strategy of presenting a reasonable excuse
2       See, e.g., Johnson v. State, 414 S.W.3d 184, 192
                                                                    for her failure to appear. Sasser stated: “The law for bail
        (Tex.Crim.App.2013); Cameron v. State, 241 S.W.3d           jumping does allow a defense if someone had a reason, a
        15, 19 (Tex.Crim.App.2007) (reviewing trial court's         legitimate reason for not showing up.” He then asked the
        decision on the applicability of privilege as an            venire panel whether there was “any reason” they could
        evidentiary ruling).                                        imagine “someone might not show up for court,” eliciting
 *2 Lajuan Bailey was charged in 2009 with the felony               responses that included “hospital,” “family emergency,” and
offense of fraudulent use or possession of identifying              “incarcerated.” Sasser then asked: “What about if they didn't
                                                                    know, would that be a legitimate reason?” One venireperson
information in Harris County. 3 She was charged with a
                                                                    responded “No,” prompting Sasser to retort: “If they didn't
separate instance of the same crime that same year in
                                                                    know they were supposed to come to court?” The transcript
                                                                    indicates the panel responded “in unison”: “No.” This line


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Bailey v. State, --- S.W.3d ---- (2015)


of discussion then ended after the trial judge sustained an                  Bailey also was excused from her obligation to the court
objection from the State.                                                    to appear when required.


                                                                     E. Evidence of Bailey's knowledge of the Harris County
C. State's motion to compel                                          court date
At the beginning of trial testimony, the court held a hearing        On the second day of testimony, the State called Roberts
on the State's motion to compel the testimony of Bailey's            to the stand, indicating that it intended to ask him about
original defense attorney, Brian Roberts, as a witness to testily    his representation of Bailey in the Jefferson County case.
“about information regarding resets and information passed           Defense attorney Sasser objected, arguing that any mention of
on by the defense attorney from the Court to his client for          Jefferson County and Bailey's failure to appear for trial in that
purposes of showing up in court.” Roberts was present and            case would be “highly prejudicial” and inadmissible under
asserted his unwillingness to divulge information relating
                                                                     Rule 403. 5 The State argued that the evidence was admissible
to a former client unless ordered to do so by the court.
                                                                     under Rule 404(b) in order to show motive or intent. The court
The State argued that Roberts could be compelled to testily
                                                                     ruled that the Jefferson County case should not be discussed
about his communication of court dates to Bailey, as the
                                                                     unless the defense “opened the door.”
transmission of this information is exempt from the attorney-
client communication privilege under the rule of Austin v.
                                                                     5       Bailey does not claim on appeal that the injection
State, 934 S.W.2d 672 (Tex.Crim.App.1996). The trial court
                                                                             of extraneous offense evidence constituted deficient
agreed, granted the State's motion to compel, and ordered
                                                                             performance by her trial counsel. Accordingly, the
Roberts to testify.
                                                                             dissent's repeated references to the disclosure of an
                                                                             extraneous offense miss the mark—they have nothing to
                                                                             do with Bailey's contention on appeal that her privilege
D. Evidence of Bailey's failure to appear
                                                                             was violated.
 *3 The State called as witnesses Bailey's bail bondsman
and several Harris County court employees, including the             Accordingly, throughout direct examination the State
district court coordinator. The State relied on these witnesses      confined its questioning to the history of the Harris County
to establish the basic facts supporting its case: Bailey was         matter. Roberts testified about a series of resets in the Harris
charged with a crime, she had been released on bond with the         County case. He explained that he requested the final reset
expectation that she appear in court when required, she was          because a close friend had died and there was a risk the
obligated to appear in court on September 21, and she did            funeral would coincide with the hearing. He sent a lawyer
not appear. The bail bondsman testified that he had spoken to        with whom he shared office space, Chip Lewis, to obtain the
Bailey on September 8, and that she told him “that there was         reset. He further confirmed that he had telephoned Bailey on
a reset, an off-docket reset.” The bondsman also made several        September 2 and told her about the reset.
subsequent attempts to communicate with Bailey between
September 8 and the next court date on September 21, but
                                                                     F. Cross-examination of former attorney
these were unsuccessful because she had moved and changed
                                                                     During cross-examination, Sasser initially asked questions
her phone number. 4                                                  critical of Roberts's handling of the reset. For example,
                                                                     he asked Roberts why he had sent another attorney to
4       The dissent makes special note of the bondsman Stim          handle it and why he failed to consult with Bailey prior
        Bowie's testimony, characterizing it as demonstrating        to rescheduling. Eventually, Sasser changed subjects to the
        that he believed, as Bailey claimed to believe, that         Brazoria County charge. That subject had not been part of
        “the September 8 revocation of her bond excused her          the State's direct examination, and the new line of defense
        from the obligation to appear on September 21.” This
                                                                     questioning prompted a renewed discussion of the attorney-
        mischaracterizes the testimony, in which Bowie agreed
                                                                     client privilege:
        only with defense counsel's suggestion that after the bond
        had been revoked, no other action was required of Bailey         Sasser: Do you remember having—I know this is real
        “in that contract.” Bowie's agreement that Bailey owed
                                                                           touchy because of the attorney-client privilege. For
        no further performance with respect to her contract to
                                                                           purposes of my questioning, if I ask you a question that
        obtain a bail bond is not tantamount to agreement that
                                                                           invades attorney-client privilege, you can assume it's



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Bailey v. State, --- S.W.3d ---- (2015)


     okay to answer. I've talked to my client about this. Okay?
     I want to go into specific conversations. I want to have       The Court: All right. Anything further?
     my client—
                                                                    Prosecutor: Not unless Mr. Roberts has questions of his
   *4 Prosecutor: Judge, may we approach.                             prior client or has concerns.

(Emphasis supplied.) At the bench, the prosecutor then stated:      Sasser: I think it's clear she waived the privilege at this
“I think for Mr. Roberts's protection, he's worried about going       point. I'm offering Mr. Roberts the opportunity if he
into this and he needs to hear that from the client outside           doesn't feel uncomfortable (sic) or doesn't need to make
the presence of the jury so that Mr. Roberts is comfortable           inquiries so we don't have to take the jury back out.
that she is allowing him to answer the questions.” The judge
                                                                      Mr. Roberts, do you think that's adequate for the
then excused the jury from the courtroom, and the discussion
                                                                      attorney-client privilege for you to answer the questions
continued in Bailey's presence:
                                                                      unencumbered by attorney-client privilege you used to
  Sasser: Judge, at this time I anticipate asking Mr. Roberts         have with Ms. Bailey?
    about communications that he had with my client
                                                                    Roberts: I didn't quite hear what it is she's waiving. I
    regarding the warrants that came up from Brazoria
                                                                      don't feel comfortable testifying to anything unless I hear
    County. Not from Jefferson County, not from Beaumont.
                                                                      directly from her the particular privileged conversations
    We already talked about this earlier, but the fact, you
                                                                      that she's waiving her privilege to. Are you waiving
    know, [the prosecutor] had come in here and gotten
                                                                      privilege—
    the bond revoked, she had these new cases in Brazoria
    County, I basically want to talk about the conversations        Defendant: I'm only waiving privilege to the one case that
    he might have had with her about that and the fact—               was filed against me in Brazoria County during this time
                                                                      because everything did not happen at the same time. Do
  The Court: You discussed these with your client?
                                                                      you understand what I'm saying?
  Sasser: Yes, sir, I have.
                                                                    Roberts: Correct.
  The Court: Alright. I will allow you to.
                                                                    Defendant: There's only one thing that changed during the
  Sasser: For my protection, may I get something on the               whole time I was on bond, that is the only thing that I'm
    record from my client?                                            talking about and referencing, not everything subsequent
                                                                      or after the fact.
  The Court: Any objection?
                                                                    Sasser: She had a gun case, the initial case filed in Brazoria
  Prosecutor: No, Judge. I think for Mr. Roberts, he needs to         County, felony possession of a gun. That was the warrant
    hear it out of Ms. Bailey's mouth that she's waiving the          [the prosecutor] came in and showed you. I would
    privilege between her and the attorney.                           assume. I wasn't here, Judge. She picked up this new case
                                                                      in Brazoria and you revoked her bond.
  Sasser: You just heard what I discussed with the judge.
                                                                     *5 Roberts: That's the only thing. Nothing else. I
  Defendant: Only on one case. That's the only case that was          understand.
    because I had no other charges. There was only one case
    filed.                                                          Defendant: Just only that.

  Sasser: Are you waiving the attorney-client privilege by        (Emphasis supplied.)
    your prior attorney, Mr. Roberts, for me to question
    him regarding communications that you may have had            In response to questioning by the defense, Roberts confirmed
    with him around September 2nd, 2010 regarding your            that during the time leading up to the September 21,
    outstanding cases, the Brazoria cases?                        2010 Harris County court date, Bailey had an “open
                                                                  warrant” stemming from the Brazoria County charge. Sasser
  Defendant: Yes, one case.                                       probed the extent to which Roberts informed Bailey of the
                                                                  seriousness of the warrant and the need to present herself


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Bailey v. State, --- S.W.3d ---- (2015)


to authorities. He elicited testimony confirming that Roberts       *6 When another discussion of the privilege ensued, the trial
prepared the motion to withdraw in advance of the hearing          court stated its understanding that “we have opened the door,
because he knew that Bailey would not be coming to court,          we have come into both the Jefferson County charges and the
and explaining how he knew that. 6 As Sasser continued to          Brazoria County charges, along with the charge here.” When
probe the attorney-witness's communications with his former        Bailey interjected that she “was very specific in saying that I
client, he reassured him: “We'll get through this. It's all out    wanted to stick to the Brazoria County charge,” the trial judge
right now. The jury is going to hear about everything. Don't       reiterated that “the door has been opened as to both charges”
worry about the attorney-client. Everything has been waived        and that the privilege had been waived.
at this point.” (Emphasis supplied.)
                                                                   When trial resumed the next day, the parties continued to
6                                                                  debate the privilege issue in the context of defense motions for
       Under the pressures of a cross-examination that placed
                                                                   mistrial and, in the alternative, to strike the testimony relating
       his professionalism at issue, Roberts displayed an
                                                                   to the Jefferson County charges. Among other responses,
       admirable sensitivity to respecting his former client's
       privilege. When the questioning about his client            the State argued that Bailey's privilege had been waived for
       communications first veered away from the Brazoria          several reasons:
       County charges, it was Roberts who provoked a
       careful consideration of how the cross-examination was
                                                                                Number one, they were accusing
       unfolding. When asked how he knew that Bailey would                      Mr. Roberts of something, therefore,
       not be coming to court for a hearing in Harris County                    the privilege disappears so he can
       (such that it was recited in the written motion he had                   defend himself. Number two, it was
       brought with him to court on the date of the hearing as                  brought up by the defense as a
       a reason supporting his request to withdraw), Roberts                    contemplated part of their [reasonable-
       suggested that counsel “might want to approach” the                      mistake] defense. Number three, the
       bench. The ensuing bench conference yielded no clarity                   defendant did not assert her privilege
       with respect to the privilege, and Bailey's trial counsel                after hearing her lawyer say: The
       asked the question again, specifically instructing the                   privilege is waived, go ahead and
       witness: “You can answer that.” Roberts sought guidance
                                                                                answer the question. And she very
       from the trial judge, who stated: “You may.”
                                                                                easily could have done that over the
The exchange between defense attorney and former-attorney                       long period of time at some point,
witness apparently became heated when Sasser asked
                                                                                Judge. 7
questions suggesting that Roberts, along with his office mate
Lewis, had been demanding higher fees of Bailey in the wake        The trial court denied the motion for mistrial and the motion
of the Brazoria County charges. Roberts denied attempting          to strike.
to charge Bailey more for the cases he had been retained to
handle in Jefferson and Harris Counties, and he also explained     7       The dissent suggests that the State never argued implied
that his office mate, Lewis, did offer to defend her against the           waiver. But as quoted above, the trial court initially
fresh charges in Brazoria County for an additional fee.                    excluded testimony about the Jefferson County charge
                                                                           unless the defense “opened the door,” and the State did
Sasser eventually asked Roberts whether he warned Bailey                   argue at trial, in support of the trial court's later waiver
that she would be “making a huge mistake” by not appearing                 finding, that “it was brought up by the defense as a
and forsaking the opportunity for plea bargains he had been                contemplated part of their defense.” This response did
negotiating. Roberts replied that on September 14 he had                   express, in general terms, the substance of the implied-
emailed, texted, and called Bailey to advise her of what would             waiver argument. Moreover, we “may uphold a trial
happen if she did not appear for court in Jefferson County.                court's ruling on any legal theory or basis applicable
                                                                           to the case.” Martinez v. State, 91 S.W.3d 331, 336
In response to Sasser's questions, Roberts revealed that he
                                                                           (Tex.Crim.App.2002); see also Winegarner v. State, 235
had expressly warned Bailey by email that her failure to
                                                                           S.W.3d 787, 790 (Tex.Crim.App.2007) (“as long as the
appear in Jefferson County would likely result in a felony
                                                                           trial court's decision was within the zone of reasonable
“bond jumping charge” and also “necessarily complicates
                                                                           disagreement and was correct under any theory of law
your Harris County case.”                                                  applicable to the case, it must be upheld”).




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Bailey v. State, --- S.W.3d ---- (2015)


Sasser then continued his cross-examination of Roberts.
He immediately and affirmatively elicited testimony that             A. Because ... once retained and everything, the plan
although Roberts had called, texted, and emailed Bailey                was to do a non-arrest bond in Brazoria County. That
the day before her scheduled appearance admonishing her                would have alleviated any warrants, I wouldn't have had
to appear in Jefferson County, he did not repeat these                 warrants in any counties, and I would have had a good
communications in regard to Harris County. In phrasing his             reputable person from Brazoria County to help me fight
questions, Sasser emphasized that Bailey's bond had been               the charge that was brought against me.
revoked in Harris County prior to her scheduled appearance
                                                                   Defense counsel also asked Bailey to explain her failure to
on September 21, whereas in Jefferson County, Bailey's bond
                                                                   appear in Jefferson County:
had not been revoked prior to her failure to appear there on
September 15.                                                        Q. Why did you not go to Beaumont when you were
                                                                       supposed to go? You said you had multiple reasons. You
Later, during recross-examination, Sasser returned to the              were talking about your first reason.
substance of the communications about the Jefferson County
case, and he asked Roberts to confirm that Bailey understood         A. Okay. The first reason I had is because of my bond
that if she had appeared at the hearing in Beaumont, she would         being revoked in Harris County. I wasn't prepared for
have been taken into custody.                                          that. The second reason was because when speaking with
                                                                       my attorney at that time, when he—when Mr. Roberts
                                                                       said he sent me the e-mail, I didn't even get the e-mail. I
G. Bailey's testimony                                                  was under the impression that our plan was to handle all
Once the State rested, the defense called Bailey to the stand.         of my cases at one time, and, you know, I guess to have
She emphasized that she had not wanted to be taken into                a plan for everything.
custody on the Brazoria County warrants because she wanted
the opportunity “to take care of everything” and have her “fair    She thus testified that she did not appear in Jefferson County
day in court.” She also discussed meetings in which Roberts's      because she “wasn't prepared” for her bond revocation in
office mate, Lewis, offered to defend her on the Brazoria          Harris County, and she was under the “impression” that the
County charge for $30,000. According to Bailey, in addition        “plan” arranged with her attorney was to consolidate and
to allowing Roberts to attend a funeral, the rescheduling of the   resolve all of the pending charges. When Bailey was asked
Harris County hearing also served the purpose of giving her        why she did not appear in Harris County on September 21,
“more time out there in the free world to get money together       she answered, “Because according to the agreement I had on
to give attorneys.”                                                the bail agreement, my bond was revoked.” Bailey went on
                                                                   to explain that she had a background in real estate and was
 *7 After reviewing the substance of these discussions with        familiar with contracts.
attorneys Roberts and Lewis, defense counsel asked Bailey
about her understanding of her general status at that time with    Rather than relying on Bailey's own lay understanding of
respect to her various pending criminal proceedings. Bailey's      the implications of the revocation of bail to establish the
response specifically addressed the outstanding warrants for       reasonableness of her excuse, defense counsel then sought to
her arrest:                                                        bolster the reasonableness of Bailey's understanding of her
                                                                   contract with the bonding company:
  Q. (By Mr. Sasser) Okay. So, after you left your meeting,
    that last meeting, the one that was right before the off-        Q. (By Mr. Sasser) Well, what did you do when you found
    docket reset was done, did you feel like if you got this           out it was revoked? Did you try to get an understanding
    money together that you would be able to stay out of               of this agreement?
    custody and fight your cases like you had been out
                                                                     A. Yes, I did.
    before?
                                                                     Q. Who did you try to get that understanding from?
  A. Yes, I did.
                                                                     A. From my attorney, Mr. Roberts, and from the bonding
  Q. And why?
                                                                       company.




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Bailey v. State, --- S.W.3d ---- (2015)




H. Defense closing argument and judgment of conviction             (Emphasis supplied.) Sasser thus argued that Bailey's course
The jury charge contained an instruction on the defense of         of conduct had been sanctioned by the attorneys she had
reasonable excuse that specifically addressed Bailey's claim       retained to manage her legal problems, emphasizing her
that she had believed the revocation of her Harris County          desire to remain free from custody so that she could gather
bond on September 8 relieved her of the obligation to attend       money to hire Lewis as her attorney in Brazoria County and
court on September 21. See TEX. PENAL CODE § 38.10(c).             consummate her plans with Roberts to resolve the Jefferson
In his closing argument, Sasser admitted that Bailey had           County and Harris County charges together.
failed to appear but argued that the jury should acquit her
because she had a reasonable excuse. He contrasted Bailey's        The jury found Bailey guilty, and after a hearing on
situation in Jefferson County, where her bond had not been         punishment, imposed a fine of $10,000 and a prison sentence
revoked, and her circumstances in Harris County, where bond        of ten years. The judge entered judgment on the jury's verdict.
had been revoked prior to her scheduled appearance.                Bailey filed a notice of appeal and Sasser moved to withdraw.

 *8 Sasser noted that Roberts had specifically warned Bailey
to appear in Jefferson County, but he had not warned her
                                                                                              Analysis
about Harris County. He emphasized that in response to the
charges pending against her in three different counties, Bailey    Bailey argues that she received ineffective assistance of
did “the one thing she knows to do, call her attorney, says:       counsel and that the trial court erred by denying her motion
Hey what do we do?” The thrust of this argument was that she       for mistrial.
reasonably placed her trust in Roberts to manage the situation,
and that his failing rather than hers resulted in her failure to
appear. Sasser argued:                                             I. Ineffective assistance of counsel
                                                                   Bailey argues that she received ineffective assistance of
  We know he didn't send her anything else to say: Hey,            counsel, but only based upon a portion of Sasser's cross-
  look you need to come to Houston. You need to come to            examination which elicited testimony about attorney-client
  this court as well or else this could happen. We know that       communications. The only examination alleged to be
  because he said he did not e-mail her anything.                  deficient was that which came before the trial judge ruled
                                                                   “the door has been opened” to questioning about Jefferson
  ....
                                                                   County. Bailey does not complain on appeal that Sasser
  The defendant testified and said she had conversations with      rendered ineffective assistance by failing to explain the legal
  Mr. Roberts. And, basically, it was, you know, if you can        implications of her express waiver of privilege, by opening
  get this money together, we can try to take care of your         the door to evidence about the Jefferson County extraneous
  problems. And that's what she was trying to do.                  offense, by continuing his examination on that subject after
                                                                   the denial of a mistrial, or by arguing to the jury that she had
  ....                                                             a reasonable excuse based on her communications with her
                                                                   lawyer.
  ... She was trying to get a solution. She was counting on
  her attorneys at the time to help her out of—a helpless           [1] [2] [3] [4] [5] The constitutional right to counsel
  situation, really, at the time; but in her mind, she was         in a criminal prosecution exists to protect the fundamental
  thinking, maybe I can still stay out. I mean, as a defendant     right to a fair trial. Strickland v. Washington, 466 U.S. 668,
  that's what you think. I don't want to be in jail. And she's     684, 104 S.Ct. 2052, 2063, 80 L.Ed.2d 674 (1984). In this
  thinking, if I can get this money together like my attorneys     context, “a fair trial is one in which evidence subject to
  told me, they can take care of all this stuff. By the way,       adversarial testing is presented to an impartial tribunal for
  my bondsmen already told me my bond is revoked in the            resolution of issues defined in advance of the proceeding.” Id.
  court. My attorneys already told me my bond is revoked in        at 685, 104 S.Ct. at 2063. “The benchmark for judging any
  the court. There's no consequence. If I don't go to court,       claim of ineffectiveness must be whether counsel's conduct
  I'm just going to get my affairs in order, try to get money      so undermined the proper functioning of the adversarial
  together, get all cases consolidated, taken care of.             process that the trial cannot be relied on as having produced
                                                                   a just result.” Id. at 686, 104 S.Ct. at 2064. “This right does


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Bailey v. State, --- S.W.3d ---- (2015)


not mean errorless or perfect counsel whose competency of          a defendant's lawyer, by itself, does not give rise to a
representation is to be judged by hindsight.” Robertson v.         presumption of waiver. Carmona v. State, 941 S.W.2d
State, 187 S.W.3d 475, 483 (Tex.Crim.App.2006). Claims             949, 953 (Tex.Crim.App.1997). Nevertheless, “the totality of
that a defendant received ineffective assistance of counsel        the circumstances and reasonable inferences therefrom may
are governed by a two-part test: (1) whether the attorney's        support a finding of waiver.” Id. at 954; Wright v. State, 374
performance was deficient, i.e., did counsel make errors so        S.W.3d 564, 579 (Tex.App.—Houston [14th Dist.] 2012, pet.
serious that he or she was not functioning as the “counsel”        ref'd).
guaranteed by the Sixth Amendment; and if so, (2) whether
that deficient performance prejudiced the party's defense.         8      Effective April 1, 2015, Rule 511 has been amended
Strickland, 466 U.S. at 687, 104 S.Ct. at 2064. “An appellate             with the design of aligning Texas law with federal law
court looks to the totality of the representation and the                 on waiver of privilege by voluntary disclosure. Misc.
particular circumstances of each case in evaluating the                   Docket No. 14–9232 (Tex. Nov. 19, 2014); see also
effectiveness of counsel.” Thompson v. State, 9 S.W.3d 808,               TEX.R. EVID. 511 cmt. (2015). Rule 511(1) as quoted
813 (Tex.Crim.App.1999); see also Okonkwo v. State, 398                   above remains as part of the “General Rule” as stated in
S.W.3d 689, 693 (Tex.Crim.App.2013) (appellate review                     the new Rule 511(a).
focuses on the objective reasonableness of counsel's actual     [12]    [13]       [14]     [15] Courts have recognized several
conduct “in light of the entire record”).                      circumstances in which the waiver of a privilege is implied.
                                                               Consistent with Rule 511's acknowledgement that consent
 *9 [6]      [7]    [8]    [9]    [10] The adequacy of attorneyto disclosure of “any significant part” of a privileged matter
performance is judged against what is reasonable considering   may constitute waiver of the whole, a privilege may not
prevailing professional norms. Strickland, 466 U.S. at 688,    be waived selectively to disclose only such evidence as
104 S.Ct. at 2065. There is a strong presumption that,
                                                               may be beneficial to the party holding the privilege. 9 In
considering the circumstances, a lawyer's choices were
                                                               this sense, a privilege cannot be used simultaneously “as
reasonably professional and motivated by sound trial strategy.
                                                               a shield and a sword”: after a partial disclosure is used as
Id. at 689, 104 S.Ct. at 2065; Nava v. State, 415 S.W.3d
                                                               a sword to gain litigation advantage, the privilege cannot
289, 307–08 (Tex.Crim.App.2013). In the face of this
                                                               then be used to shield the remainder of the privileged
presumption, a criminal defendant has the burden of showing
                                                               communication. 10 With specific reference to the attorney-
by a preponderance of the evidence that his attorney failed
                                                               client communication privilege, it may be implicitly waived
to provide constitutionally adequate representation. Bone v.
State, 77 S.W.3d 828, 836 (Tex.Crim.App.2002). Limitations     by raising issues regarding the performance of counsel, 11
of the record often render a direct appeal inadequate to raise particularly if an issue is injected into the case which requires
a claim of ineffective assistance of counsel. See Goodspeed        the attorney's testimony. 12 And a defense based on an
v. State, 187 S.W.3d 390, 392 (Tex.Crim.App.2005). “An             assertion of good-faith reliance on the advice of counsel
ineffective-assistance claim must be firmly founded in the         also has been held to impliedly waive the attorney-client
record and the record must affirmatively demonstrate the
                                                                   communication privilege. 13 The touchstone of these various
meritorious nature of the claim.” Menefield v. State, 363
                                                                   theories of implied waiver is that some litigation conduct
S.W.3d 591, 592 (Tex.Crim.App.2012); see also Thompson,
                                                                   requires, in fairness, that the remainder of the privileged
9 S.W.3d at 813. That necessary firm foundation is lacking in
                                                                   communication be divulged. 14 The scope of an implied
this direct appeal. As such, this is not the “rare case in which
                                                                   waiver of privilege is a legal question to be determined under
the trial record will by itself be sufficient to demonstrate an
ineffective-assistance claim.” Nava, 415 S.W.3d at 308.            the rules of evidence, 15 and thus it is not necessarily defined
                                                                   by the client's own articulation of the scope of privilege she
 [11] As applicable to this case, Rule 511(1) of the Rules         intends to waive while at the same time authorizing disclosure
of Evidence provided: “A person upon whom these rules              of privileged communications considered helpful to her.
confer a privilege against disclosure waives the privilege
if ... the person ... voluntarily discloses or consents to         9      See Rodriguez v. State, 130 Tex.Crim. 438, 94 S.W.2d
disclosure of any significant part of the privileged matter               476, 479–80 (1936) (finding implied waiver of attorney-
unless such disclosure itself is privileged.” TEX.R. EVID.                client privilege and admitting attorney's testimony about
                                                                          guilty plea, over objection, when appellant testified that
511(1). 8 The mere disclosure of privileged materials by



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Bailey v. State, --- S.W.3d ---- (2015)


       former guilty plea was made on attorney's advice); Jones             held to be waived when a client attacks the quality of his
       v. State, 181 S.W.3d 875, 878 (Tex.App.—Dallas 2006,                 attorney's advice....”).
       pet. ref'd); Carmona v. State, 947 S.W.2d 661, 664
                                                                     12     See Lott, 424 F.3d at 453 (citing Johnson v. Alabama,
       (Tex.App.—Austin 1997, no pet.); 1 MCCORMICK
       ON EVIDENCE § 93 (7th ed. 2013) (“Waiver may                         256 F.3d 1156, 1178 (11th Cir.2001). This particular
       be found ... from conduct such as partial disclosure                 means of implied waiver often arises through allegations
       which would make it unfair for the client to invoke                  of ineffective assistance. See, e.g., Bittaker, 331 F.3d at
       the privilege thereafter.”); cf. Wilkens v. State, 847               716–17; Tasby v. United States, 504 F.2d 332, 336 (8th
       S.W.2d 547, 551 (Tex.Crim.App.1992) (Appellant's                     Cir.1974) (“When a client calls into public question the
       Fifth Amendment rights were not violated when he                     competence of his attorney, the privilege is waived.”);
       introduced part of psychiatric examination evidence to               Youkers v. State, 400 S.W.3d 200, 212 (Tex.App.—
       prove insanity defense and State introduced testimony                Dallas 2013, pet. ref'd) (“Youkers necessarily placed in
       from examining psychiatrists to rebut his presentation               issue privileged communications when he argued his
       of defense); Draper v. State, 596 S.W.2d 855, 857                    attorney breached her legal duty to provide effective
       (Tex.Crim.App. [Panel Op.] 1980) (“Once having related               assistance of counsel”).
       part of the facts of the transaction, a witness should        13     See United States v. Bilzerian, 926 F.2d 1285, 1292 (2d
       not be permitted to assert a Fifth Amendment privilege
                                                                            Cir.1991); see also United States v. Workman, 138 F.3d
       to prevent disclosure of additional relevant facts.”);
                                                                            1261, 1263–64 (8th Cir.1998); Livingstone v. N. Belle
       Stephens v. State, 59 S.W.3d 377, 380 (Tex.App.—
                                                                            Vernon Borough, 91 F.3d 515, 536–37 (3rd Cir.1996);
       Houston [1st Dist.] 2001, pet. ref'd); Aetna Cas. & Surety
                                                                            1 MCCORMICK, supra, § 93 (“if a party interjects the
       Co. v. Blackmon, 810 S.W.2d 438, 440–41 (Tex.App.
                                                                            ‘advice of counsel’ as an essential element of a claim
       —Corpus Christi 1991, orig. proceeding) (waiver found
                                                                            or defense, then that party waives the privilege as to all
       when holder of privilege deliberately revealed privileged
                                                                            advice received concerning the same subject matter”).
       matter while preparing an expert witness to testify).
                                                                     14     See, e.g., Bittaker, 331 F.3d at 719 (“courts and
10     See In re Lott, 424 F.3d 446, 454 (6th Cir.2005)
                                                                            commentators have come to identify this simple rule
       (“litigants cannot hide behind the privilege if they are
                                                                            as the fairness principle”); Bilzerian, 926 F.2d at 1292
       relying upon privileged communications to make their
                                                                            (“the privilege may implicitly be waived when defendant
       case”); Bittaker v. Woodford, 331 F.3d 715, 719 (9th
                                                                            asserts a claim that in fairness requires examination of
       Cir.2003); In re von Bulow, 828 F.2d 94, 103 (2d
                                                                            protected communications”); see also United States v.
       Cir.1987); see also Clark v. United States, 289 U.S. 1, 15,
                                                                            Miller, 600 F.2d 498, 501 (5th Cir.1979) (“We obviously
       53 S.Ct. 465, 469, 77 L.Ed. 993 (1933) (“The privilege
                                                                            cannot condone a practice that enables a defendant or any
       takes flight if the relation is abused.”); Republic Ins.
                                                                            witness, after giving the jury his version of a privileged
       Co. v. Davis, 856 S.W.2d 158, 163 (Tex.1993) (“In an
                                                                            communication, to prevent the cross-examiner from
       instance in which the privilege is being used as a sword
                                                                            utilizing the communication itself to get at the truth.”).
       rather than a shield, the privilege may be waived.”).
                                                                            Consistent with this principle, the recent amendment to
11     See Lott, 424 F.3d at 452–53; Bittaker, 331 F.3d at 718–             Texas Rule of Evidence 511, effective April 1, 2015,
       19 (citing Hunt v. Blackburn, 128 U.S. 464, 9 S.Ct.                  provides that when a voluntary disclosure covered by the
       125, 32 L.Ed. 488 (1888)); see also U.S. Fire Ins. Co.               attorney–client privilege is made in a state proceeding,
       v. Asbestospray, Inc., 182 F.3d 201, 212 (3d Cir.1999)               the waiver extends to undisclosed communications only
       (privilege waived when party “has made the decision                  if:
       and taken the affirmative step in the litigation to place                (A) the waiver is intentional;
       the advice of the attorney in issue”) (quoting Rhone–                    (B) the disclosed and undisclosed communications or
       Poulenc Rorer, Inc. v. Home Indem. Co., 32 F.3d 851,                       information concern the same subject matter; and
       863 (3d Cir.1994)); Garcia v. Zenith Elecs. Corp., 58                    (C) they ought in fairness be considered together.
       F.3d 1171, 1175 n. 1 (7th Cir.1995) (noting that “the                    TEX. R. EVID. 511(b)(1).
       attorney-client privilege is generally waived when the        15     Cf. Granada Corp. v. Honorable First Court of Appeals,
       client asserts claims or defenses that put his attorney's
                                                                            844 S.W.2d 223, 225 (Tex.1992) (orig.proceeding)
       advice at issue in the litigation”); Developments in the
                                                                            (acknowledging trial court must “interpret legal rules” in
       Law–Privileged Communications, Implied Waiver, 98
                                                                            evaluating waiver of privilege).
       HARV. L.REV.. 1629, 1638 (1985) (“The privilege is
                                                                      *10 [16] All of these considerations are implicated by
                                                                     this case. Bailey's defense theory was reasonable mistake.


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Bailey v. State, --- S.W.3d ---- (2015)


That theory was substantially predicated on her reliance on                       afterthought to mitigate the damage after defense counsel
                                                                      16          deliberately elicited “confidential evidence related to
the counsel she claimed she received from her attorney.
                                                                                  the extraneous offense in Jefferson County,” or that the
In the course of examining her former lawyer to establish
                                                                                  theory of reasonable mistake fortuitously sprang from the
her legal defense, Bailey stated an intention to limit the
                                                                                  testimony of the bail bondsman.
scope of her waiver of the privilege. Sasser sought to
exploit that attempted limitation through selective disclosure,            Bailey's apparent desire to exclude evidence about the
eliciting Roberts's testimony only about communications                    Jefferson County communications constituted an assertion
expected to be helpful to the defense theory—a tactic                      of the privilege as a shield against the use of what turned
which was harshly critical of the witness's professionalism.               out to be prejudicial information divulged as part of the
Through his questions Sasser disclosed communications                      broader context of the representation: that Roberts actually
about the proposed Brazoria County representation, using                   had documented his significant efforts to inform and advise
that testimony to portray the advice as tainted by the desire              her about the consequences of a failure to appear. Those
to collect a fee. His questions also caused the disclosure of              communications were interconnected with communications
communications concerning the need to actually appear for                  about the Harris County case in both time and substance.
the Harris County hearing, which he depicted as inadequate                 Bailey failed to appear for a court date in Harris County less
relative to the risk of not appearing, as well as confused by              than a week after she failed to appear in Jefferson County,
the effect of the prior bond revocation. All this evidence was             against Roberts's strongly worded advice which expressly
selectively elicited and offensively used in furtherance of the            warned that a failure to appear “necessarily complicates your
strategy of proving the reasonable-mistake defense.                        Harris County case.” To affirmatively rely upon suggested
                                                                           deficiencies in the evidence of communications about the
16                                                                         need to appear in Harris County while excluding the evidence
       The dissent suggests that “[p]rior to Sasser's cross-
                                                                           about the need to appear in Jefferson County would leave
       examination of Roberts during which confidential
                                                                           an unfair and misleading impression that Roberts had not
       evidence related to the extraneous offense in Jefferson
       County was disclosed, there was no evidence that
                                                                           adequately advised Bailey about the serious implications of
       appellant blamed her mistaken belief on advice of                   failing to appear.
       counsel or that Roberts ever told her that she did not
       need to appear at trial.” Such evidence would not be                 *11 The decision to divulge a substantial part of
       necessary for the trial court to conclude that Bailey               her privileged communications to establish a defense of
       had waived privilege by consenting to disclosure of a               reasonable mistake in this case—for which Bailey gave
       “significant part” of her attorney communications, see              express consent—was itself sufficient to waive privilege
       TEX. R. EVID. 511, but regardless, a review of the                  as to the additional related and relevant interwoven
       entire trial record shows otherwise. As early as voir dire,         communications. See TEX. R. EVID. . EVID. 511. That
       defense counsel previewed the reasonable-mistake trial              waiver was implied, and the proverbial door was opened, well
       strategy by asking the venire panel whether there was
                                                                           before Sasser ever crossed the boundary of express consent
       “any reason” they could imagine “someone might not
                                                                           through the questions now alleged to constitute deficient
       show up for court.” Before Roberts was called to the
                                                                           performance on his part. It was already implied by the time
       stand, Sasser cross-examined the court coordinator about
       the procedures applied when a defendant fails to appear,            Sasser elicited the communications about the failure to appear
       and asked: “If the defense attorney were to come to you             in Jefferson County.
       and say: Hey, look, I just forgot to tell my client, my bad,
       my mistake, is that any type of problem?” In response,              [17]     [18]      [19] A waiver of privilege is narrowly
       the coordinator stated: “They need to address it with the                     17
                                                                           construed,  and the reasonable-mistake defense was not
       Judge.” Then before any testimony was elicited about                a blanket waiver of all attorney-client communications,
       attorney-client communications relating to the Jefferson
       County charge, Sasser used his cross-examination to                 including ones unrelated to the mistake defense. 18 But by
       suggest that Roberts failed to adequately advise Bailey             pursuing a strategy and persistently arguing that she had
       about the importance of appearing for the pretrial hearing          a reasonable excuse for her failure to appear based on
       and the potential consequences of failing to appear.                her communications with her lawyer, Bailey did place all
       Accordingly, it is not the case, as apparently suggested            her communications with Roberts relevant to that particular
       by the dissent, that the defense theory of reasonable               subject at issue. This understanding of the challenged line of
       mistake due to reliance on counsel arose merely as an               questions is essentially conceded on page 4 of the appellant's


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Bailey v. State, --- S.W.3d ---- (2015)


brief, which concedes: “As part of her reasonable explanation       19     947 S.W.2d at 664.
defense, Bailey consented to waiver of the privilege regarding
                                                                     *12 [20] The trial judge ruled that Bailey had waived
a charge in Brazoria County.” Despite the self-serving
                                                                    her privilege. The record supports that ruling. Like other
limitations stated as part of Bailey's express consent, by
                                                                    evidentiary rulings, a trial court's ruling determining that
asserting the defense she necessarily consented to waiver
                                                                    a privilege has been waived is reviewed for abuse of
of all the related and interwoven communications, including
                                                                    discretion, is upheld when it is within the zone of
those about the importance of appearing in Jefferson County.
                                                                    reasonable disagreement, and may not be reversed “solely
17                                                                  because the appellate court disagrees with the decision.” 20
       “Implied waivers are consistently construed narrowly.
                                                                    Considering the totality of the circumstances and the
       Courts ‘must impose a waiver no broader than needed to
       ensure the fairness of the proceedings before it.” In re     reasonable inferences therefrom, the trial court did not abuse
       Lott, 424 F.3d at 453 (quoting Bittaker, 331 F.3d at 720).   its discretion in finding implied waiver. The record does
       This is because “[a] broad waiver rule would no doubt        not provide a firm foundation to affirmatively establish
       inhibit the kind of frank attorney-client communications     that confidential communications were elicited without
       and vigorous investigation of all possible defenses that     Bailey's actual consent, as the record is conflicted on that
       the attorney-client and work product privileges are          subject. 21 Ordinarily, we may presume that an appellant's
       designed to promote.” Bittaker, 331 F.3d at 722.
                                                                    trial lawyer fully explained the possible consequences of
18     Cf. Marathon Oil Co. v. Moye, 893 S.W.2d 585, 590            eliciting evidence at trial. 22 Thus, at this procedural stage
       (Tex.App.—Dallas 1994, no writ) (voluntary disclosure        and on this record, there is no need to address whether it
       of significant part of privileged material can result in     would have been constitutionally deficient performance in
       implied waiver of privilege to other documents, though       this case for trial counsel to inadvertently effect an implied
       waiver does not automatically allow disclosure of all
                                                                    waiver of privilege by a selective disclosure of privileged
       privileged materials).
                                                                    communications, when the record reflects that the selective
In response to this implied-waiver analysis, the dissent            disclosure was expressly authorized by the client, but the
attempts to distinguish this appeal from Carmona v.                 record is silent as to whether counsel actually and correctly
State, 19 observing that in Carmona the defendant's selective       advised his client about the legal effect of the selective
disclosure of privileged polygraph results related to “the          disclosure (other than counsel's twice-repeated assurance to
defense of the same charged offense” (sexual assault and            the court that he had discussed the matter with the defendant).
indecency with a child) as did the incriminatory statements
made before the polygraph exam, which the defendant sought          20     Cameron, 241 S.W.3d at 19–20; Carmona, 947 S.W.2d
to protect from disclosure. Meanwhile in this appeal, the                  at 664. Due to the fact-specific nature of the inquiry,
dissent emphasizes that “Roberts represented appellant in two              courts also have reviewed implied waiver rulings in
separate cases”—i.e., separate charges of fraudulent use or                particular for abuse of discretion. See, e.g., Davis, 856
possession of identifying information filed in Jefferson and               S.W.2d at 164 (reviewing trial court's decision on waiver
Harris Counties—and “[d]iscussions that the two may have                   of attorney–client privilege for abuse of discretion);
had about one case would not be relevant and admissible as                 In re Grand Jury Proceedings, 219 F.3d 175, 183
                                                                           (2d Cir.2000) (“Whether fairness requires disclosure
to the other.” The distinction of two separate charges makes
                                                                           has been decided by the courts on a case-by-case
no difference in this appeal, in which the communications
                                                                           basis, and depends primarily on the specific context in
on both of two charges had relevance to Bailey's reasonable-
                                                                           which the privilege is asserted.”); but see United States
excuse defense to a separate third charge, arising from her                v. Mendelsohn, 896 F.2d 1183, 1188 (9th Cir.1990)
later failure to appear in court as required in Harris County.             (reviewing de novo court's holding that privilege had
The attorney-client communications about the need to appear                been waived).
had no relevance and would not have been admissible on
                                                                    21     Bailey's depiction of the record in this regard is
either of the original Jefferson County and Harris County
charges. Those communications only gained relevance and                    materially incomplete in its failure to acknowledge
                                                                           and address the totality of the circumstances and the
became admissible when Bailey injected them into the trial
                                                                           reasonable inferences therefrom, including aspects of
on a separate charge in her attempt to prove that she had a
                                                                           the record that do suggest an actual waiver of the
reasonable excuse for failing to appear.
                                                                           privilege as found by the trial court, her statements on




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Bailey v. State, --- S.W.3d ---- (2015)


       the record notwithstanding. Our dissenting colleagues           as ineffective,” Rylander v. State, 101 S.W.3d 107, 111
       reach the opposite conclusion by ignoring the implied-          (Tex.Crim.App.2003), and that has not yet happened in this
       waiver doctrine and by accepting Bailey's and Sasser's          case outside the context of trial counsel's active, ongoing
       statements as the conclusive facts concerning their
                                                                       representation of Bailey. 23 Certainly the circumstances here
       communications. The trial judge, who was in a better
       position in the courtroom to observe these events as they
                                                                       are not comparable to other examples of alleged misconduct
       transpired, concluded otherwise, and the dissent does           that the Court of Criminal Appeals has found insufficiently
       not contend that there was no evidence to support that          outrageous to support a finding of deficient performance in
       conclusion. The case identified in the dissent, Ex parte        the absence of an explanation by counsel. 24
       Varelas, 45 S.W.3d 627 (Tex.Crim.App.2001), provides
       no authority for overriding the trial judge's discretion        23     See also State v. Thomas, 428 S.W.3d 99,
       as to this issue. Unlike Bailey's direct appeal, which
                                                                              106 (Tex.Crim.App.2014) (“When counsel faces an
       comes to us without the benefit of a post-trial evidentiary
                                                                              ineffective-assistance claim, the attorney-client privilege
       hearing, Varelas was an appeal from the denial of a
                                                                              is waived, and trial counsel has the opportunity to
       post-conviction application for a writ of habeas corpus.
                                                                              explain his actions.”); Bone v. State, 77 S.W.3d 828, 836
       Varelas, 45 S.W.3d at 629. On the direct appeal in
                                                                              (Tex.Crim.App.2002) (“Under our system of justice, the
       that case, the Court of Criminal Appeals had rejected
                                                                              criminal defendant is entitled to an opportunity to explain
       the appellant's claim of ineffective assistance, noting
                                                                              himself and present evidence on his behalf. His counsel
       the inadequacy of the record. Id. at 632 (citing Varelas
                                                                              should ordinarily be accorded an opportunity to explain
       v. State, No. 72178, slip op. at 10–11 (Tex.Crim.App.
                                                                              her actions before being condemned as unprofessional
       Mar. 4, 1997) (not designated for publication)). The
                                                                              and incompetent.”).
       crucial Varelas affidavit was submitted after trial had
       concluded, in the context of the post-conviction habeas         24     See, e.g., Menefield v. State, 363 S.W.3d 591,
       proceeding. On the particular facts of that case, the                  593 (Tex.Crim.App.2012) (failure to object to an
       Court concluded that the trial court's finding that trial              infringement of the client's right to confront witnesses);
       counsel had used sound trial strategy in not requesting a              Goodspeed v. State, 187 S.W.3d 390, 393–94
       limiting instruction relating to evidence of the appellant's           (Tex.Crim.App.2005) (failure to ask questions on voir
       extraneous acts was “unsupported by the record.” Id. at                dire); Thompson, 9 S.W.3d at 814 (failing to continue
       632 n.5; see also id. at 646–47 (Holland, X, concurring                objecting to significant hearsay).
       in the denial of rehearing) (“I stand by the Court's
       opinion that there is no evidence in the record to suggest      Bailey also cannot demonstrate harm under the second prong
       that the failure to request limiting instructions was the       of Strickland. Despite Sasser's statements to the effect of
       result of trial strategy.”). Varelas thus involved a record     “falling on his sword,” after unsuccessfully moving for
       that gave no support to the trial court's crucial factual       a mistrial he subsequently made the strategic decision to
       finding in support of its ruling, and as such it is readily     continue to elicit confidential communications from Roberts
       distinguishable from this direct appeal and its conflicted      and to use them to argue the reasonable-mistake defense. The
       record relating to the waiver issue.                            record does not provide a firm foundation for a claim that
22                                                                     Bailey was harmed by this, considering that the evidence was
       See Robertson v. State, 187 S.W.3d 475, 484
       (Tex.Crim.App.2006) (citing Strickland, 466 U.S. at
                                                                       all but conclusive as to her guilt on the failure to appear
       689, 104 S.Ct. 2052); see also Carmona, 947 S.W.2d at           charge, save the possibility of persuading the jury she had a
       664 (concluding based on evaluation of record that it was       reasonable excuse.
       “not irrational for the trial court to infer” that the client
       authorized a disclosure of privileged communications,           We overrule Bailey's first issue alleging ineffective assistance
       “hoping for favorable results”).                                of counsel.
 *13 [21] Given the statutory defense of reasonable mistake
and counsel's evident strategy in advocating for an acquittal
                                                                       II. Mistrial
on that basis, this appeal does not conclusively establish
                                                                        [22] In the alternative, Bailey contends that the trial court
that trial counsel's questions about Jefferson County were
                                                                       abused its discretion when it denied her motion for mistrial.
so outrageous that no reasonable attorney would have asked
                                                                       She claims that Roberts's disclosure of privileged information
them. “[T]rial counsel should ordinarily be afforded an
                                                                       was highly prejudicial, that no curative measures were taken
opportunity to explain his actions before being denounced



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Bailey v. State, --- S.W.3d ---- (2015)


by the court, and that the disclosure likely affected the jury's   disclosed to persons other than those to whom disclosure is
verdict.                                                           made to further rendition of professional legal services to the
                                                                   client. TEX.R.CRIM. EVID. 503(a)(5). The privilege belongs
 [23] In addition to our explanation, above, that the privilege    to the client. TEX.R.CRIM. EVID. 503(b),(c); Burnett v.
already had been waived before the line of questions that          State, 642 S.W.2d 765, 770 (Tex.Crim.App.1982). The
gave rise to the motion for mistrial, we also note that the        client can waive the privilege by voluntarily disclosing or
testimony of which Bailey now complains was introduced             consenting to the disclosure of a significant part of the
by her own attorney. “[A] defendant may not complain of            privileged matter. TEX.R.CRIM. EVID. 511. Disclosure
evidence elicited by [her] own attorney.” Ex parte Ewing,          by the attorney does not waive the privilege absent the
570 S.W.2d 941, 948 (Tex.Crim.App. [Panel Op.] 1978); see          client's consent. See Cruz v. State, 586 S.W.2d 861, 865
also Durrough v. State, 672 S.W.2d 860, 873 (Tex.App.—             (Tex.Crim.App.1979). To waive the privilege, the defense
Corpus Christi 1984). Therefore, the trial court did not abuse     attorney must act with his client's consent when disclosing the
its discretion in refusing to grant a mistrial.                    privileged materials. See TEX.R.CRIM. EVID. 503(b), (c).
                                                                   Waiver may be inferred from the totality of the circumstances
                                                                   and reasonable inferences. Carmona v. State, 941 S.W.2d
                                                                   949, 954 (Tex.Crim.App.1997).
                         Conclusion

We affirm the judgment of the trial court.                         The State cites a series of cases in which, by their
                                                                   silence, defendants were held to have acquiesced to
                                                                   their attorney's waiver of the attorney-client privilege or
                                                                   some other right or admission. See Fuller v. State, 835
En banc reconsideration was requested. Tex.R.App. P. 49.7.         S.W.2d 768, 771 (Tex.App.–Eastland 1992, pet. ref'd),
                                                                   disapproved on other grounds, Carmona, 941 S.W.2d
A majority of the justices of the Court voted in favor of
                                                                   at 953–54 (holding defendant consented to disclosure of
reconsidering the case en banc.
                                                                   privileged materials when lawyer disclosed same to deputy in
The en banc court consists of Chief Justice Radack, and            defendant's presence and defendant said nothing); Drimmer
Justices Jennings, Keyes, Higley, Bland, Massengale, Brown,        v. Appleton, 628 F.Supp. 1249, 1251–52 (S.D.N.Y.1986)
Huddle, and Lloyd.                                                 (holding attorney-client privilege waived when defendant
                                                                   voluntarily permitted his attorney to testify to privileged
Justice Massengale, writing for the majority of the en banc        information without objecting); see also Stribling v.
court, joined by Justices Bland, Brown, Huddle, and Lloyd.         State, 542 S.W.2d 418, 419 (Tex.Crim.App.1976) (holding
                                                                   defendant acquiesced to stipulation entered into by his
Chief Justice Radack, joined by Justices Jennings, Keyes, and
                                                                   attorney in court); Chaney v. State, 464 S.W.2d 653, 656
Higley, dissenting.
                                                                   (Tex.Crim.App.1971) (same); Genzel v. State, 415 S.W.2d
                                                                   919, 921–22 (Tex.Crim.App.1967) (same); Griffith v. State,
Sherry Radack, Chief Justice, dissenting.                          635 S.W.2d 145, 147 (Tex.App.–Houston [1st Dist.] 1982,
Because I believe that no competent attorney would                 no pet.) (same); see also Alvarado v. State, 912 S.W.2d 199,
employ a trial strategy that calls for eliciting privileged        214–15 (Tex.Crim.App.1995) (holding that testimony was
communications over his client's clearly-stated objection          admissible as an adoptive admission because appellant was
on the record, and because the record clearly supports             present when made and clearly called for response); Tucker v.
the conclusion that defense counsel did so in this case, I         State, 771 S.W.2d 523, 535–36 (Tex.Crim.App.1988) (same).
respectfully dissent.
                                                                   However, in this case, appellant was not silent as to her
A client may refuse to disclose or allow disclosure of             position on the attorney-client privilege. She repeatedly stated
confidential communications made among the client, the             to the court, “I'm only waiving privilege to the one case
client's representatives, the attorney, and the attorney's         that was filed against me in Brazoria County ...” and “[j]ust
representatives to facilitate rendition of professional legal      only that.” And, when her defense counsel started questioning
services to the client. TEX.R.CRIM. EVID. 503(b). A                Roberts outside the scope of this limited waiver of the
communication is confidential if it is not intended to be          attorney-client privilege, appellant sent defense counsel a



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Bailey v. State, --- S.W.3d ---- (2015)


note that said, “We can deal with this without bringing in          privilege and “placed in issue all of her communications with
Jefferson County.” Defense counsel admits that “[d]uring            her lawyer about the need to actually appear for hearings as
the exchange with the—with Mr. Roberts, my client was               required by the court.” Essentially, the majority concludes
attempting to tell me something, but because I was in the heat      that appellant could not waive privilege as to the Brazoria
of questioning, I was intent on the questioning, I wasn't listing   County charges without also waiving privilege as to the
to her intently.” Defense counsel also stated on the record that    Jefferson County charges, and that to attempt to do so would
his questioning of Roberts outside the scope of the authorized      allow appellant to use the attorney-client privilege as both a
waiver was “against [appellant's] wishes.”                          sword and a shield.

Based on the record before us, it cannot be said that appellant     1       An appellate court must review a trial court's ruling on a
sat by and acquiesced in defense counsel's disclosure of                    motion for mistrial in light of the arguments before the
confidential information. Appellant specifically defined the                trial court at the time it ruled. Wead v. State, 129 S.W.3d
parameters of her waiver, and when defense counsel exceeded                 126, 129 (Tex.Crim.App.2004).
those parameters, she attempted to stop him. She did                In Carmona v. State, 947 S.W.2d 661, 664 (Tex.App.–Austin
everything but stand up in open court and disrupt the court
                                                                    1997, no pet.) the defense hired a polygraph examiner, who
proceedings in an attempt to preserve her attorney-client           conducted both a pretest interview and a polygraph test on
privilege.                                                          the defendant. Id. at 662–63. Defense counsel disclosed the
                                                                    results of the polygraph to a prosecutor in an attempt to get
Any suggestion that appellant might have authorized defense         the charges dismissed, but objected at trial when the State
counsel to disclose her privileged communications during            attempted to introduce portions of the pretest interview. Id.
whispered conversations with defense counsel during the trial       After finding that the defendant consented to the disclosure
is not supported, but indeed, is controverted by the record.        of the results to the prosecutor, the court held that “the pretest
The only two people privy to the whispered discussions              interview and the test were essentially one communication
during trial—appellant and defense counsel—have already             [,]” and that the defendant could “not waive the privilege as
stated on the record that no agreement to waive privilege           to only the favorable parts.” Id. at 664.
was ever reached by appellant and defense counsel. In this
circumstance, no motion for new trial hearing is required           This case is not like Carmona, in which the defendant
—the contents of those communications between defense               attempted to use parts of a confidential conversation to her
counsel and appellant are already in the record, and both           advantage, while excluding other parts, all in the defense
parties to the communications testified that appellant did not      of the same charged offense. There, both parts of the
waive the privilege.                                                confidential conversation were clearly relevant to the charged
                                                                    offense. Here, Roberts represented appellant in two separate
Nor is there anything in the record that leads us to conclude       cases—one in Harris County and one in Jefferson County.
that the trial court disbelieved defense counsel's confession       Discussions that the two may have had about one case would
of error. It is unreasonable to believe that defense counsel        not be relevant and admissible as to the other. Indeed, by
would “fall on his sword” by falsely confessing to committing       affirmatively introducing evidence that appellant planned not
legal malpractice and ethical violations in an attempt to           to appear in Jefferson County either, defense counsel injected
provoke a mistrial for a client who had not yet been convicted.     harmful evidence of character conformity that the State
Indeed, the Court of Criminal Appeals has found the first           generally would have been unable to present. See TEX.R.
prong of Strickland met, without the necessity of a credibility     EVID. 404(b).
determination, when trial counsel filed an affidavit in which
he stated that he had no trial strategy in failing to request       In contrast, the Brazoria case that appellant consented to
a jury instruction and that his actions were “simply an             disclose was highly relevant to the Harris County case
oversight.” See Ex parte Varelas, 45 S.W.3d 627, 632                because it served as the basis for the September 8 revocation
(Tex.Crim.App.2001).                                                of her bond, and it is the September 8 revocation that led to
                                                                    appellant's “reasonable belief” argument that she no longer
Although not raised by the State, either at trial or on appeal, 1   needed to show up in court on September 21. Appellant
the majority concludes that, by raising a “reasonable-              believed that she could not “jump” a bond that had already
excuse” defense strategy, appellant waived the attorney-client      been revoked. On the day she failed to appear in Jefferson



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Bailey v. State, --- S.W.3d ---- (2015)


County, appellant's bond had not yet been revoked, so its
relevance to the issue of appellant's “reasonable excuse”             [Sasser]: Sir, why, when I was in your office, did you tell
defense would be minimal, if any, because of the differing            me that when you looked on your computer and saw her
circumstances proceeding appellant's failure to appear in             bond revoked on September 8th for her case it was a non-
each county. In sum, appellant was not using confidential             issue at that point, she was no longer in custody, there was a
communications about Brazoria County as a sword, while                warrant for her arrest, and for you—that nobody was asking
using confidential communications about Jefferson County as           you for the $15,000? Do you remember telling me that?
a shield, because only Brazoria County had relevance to the
                                                                      [Bowie]: Yes, sir, but they changed—it was a forfeiture.
charged offense in Harris County.
                                                                      There's a difference. You're saying revoked and bond
                                                                      forfeiture. Those are two different things.
The majority also claims that appellant invoked a “reasonable
excuse defense” by claiming “that [Roberts] failed to tell her        [Sasser]: Sir, remember telling me you didn't know that at
that she had to appear[,]” and that such action was “a plausible      the time? Remember you told me you just found that out
trial strategy.” The majority mischaracterizes appellant's            on this case?
reasonable excuse defense as an attack on Roberts and
argues that her reasonable excuse defense was “substantially          [Bowie]: That's correct.
predicated on [Bailey's] reliance on the counsel she claimed
                                                                      [Sasser]: What did you find out in this case that you didn't
she received from [Roberts].” While appellant did preview
her reasonable excuse defense during voir dire, at no time            know before about the difference between revocation and
                                                                      forfeiture?
prior to Sasser's unauthorized disclosure did appellant suggest
that Roberts was the source of her belief that she did not            [Bowie]: I didn't understand that if you—if your bond was
have to go to court because her bond had been revoked.                already revoked, you still cannot forfeit that bond if you
The first evidence regarding a possible source for appellant's        don't show up on that day. That's what I did not know.
belief that she did not have to go to trial after her bond was
revoked was appellant's bailbondsman, not Roberts. It was             [Sasser]: You've been doing this for ten years and you
only after defense counsel “overstepped [his] bounds” and             didn't understand how that worked, did you?
mentioned the Jefferson County proceeding was there any
evidence suggesting that Roberts was a source of appellant's          [Bowie]: No, sir.
mistaken belief.
                                                                      [Sasser]: Certainly, this defendant wouldn't be expected to
                                                                      know that?
Prior to Sasser's cross-examination of Roberts during which
confidential evidence related to the extraneous offense in            ****
Jefferson County was disclosed, there was no evidence that
appellant blamed her mistaken belief on advice of counsel             [Sasser]: And did you further tell her that revocation by
or that Roberts told her that she did not need to appear at           the Court, basically, cancels your contract with her, there's
trial. Indeed, the first evidence on this issue was elicited from     nothing else for her to perform, no other performance
Stim Bowie, appellant's bail bondsman, during the following           needed in that contract?
exchange with defense counsel, Sasser:
                                                                      [Bowie]: That is correct.
  [Sasser]: Do you remember telling me: I was a little
  confused because the Court had revoked her bond on the            Appellant's defense was that her belief that the September
  8th, but then they forfeited it on the 21st, and you said you     8 revocation of her bond excused her from the obligation
  had never even seen that before; do you remember telling          to appear on September 21 was reasonable, especially since
  me that?                                                          Bowie, a 10–year–bailbondsman, believed likewise. And,
                                                                    more importantly, the defense could have be established
  [Bowie]: Yes, sir, I did.                                         without divulging any confidential information other than the
                                                                    fact that there was a warrant for appellant's arrest in Brazoria
  ****
                                                                    County, which led to the revocation of her bail on September
                                                                    8 in Harris County.



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Bailey v. State, --- S.W.3d ---- (2015)


                                                                      In light of these considerations, I conclude that appellant
The majority states that “[appellant] stated an intention to
                                                                      did not voluntarily waive the attorney-client privilege as
limit the scope of her waiver of the privilege[,]” but “Sasser
                                                                      to the Jefferson County proceedings and any discussions
sought to exploit that attempted limitation through selective
                                                                      with Roberts about that extraneous offense. The decision to
disclosure[.]” Even if I were to agree with the majority's
                                                                      waive attorney-client privilege belongs to the client, and no
conclusion that Sasser's trial strategy waived appellant's
                                                                      reasonable attorney would employ a trial strategy that strips
attorney-client privileged through his cross-examination of
                                                                      his client of that right. As such, this is one of those rare
Roberts about the Jefferson County proceeding, such trial
                                                                      instances in which “no reasonable trial strategy could justify
strategy was clearly undertaken without appellant's consent.
                                                                      trial counsel's acts or omissions, regardless of his or her
No competent trial attorney would employ a trial strategy
                                                                      subjective reasoning.” Lopez v. State, 343 S.W.3d 137, 143
that requires eliciting privileged communications, or waiving
                                                                      (Tex.Crim.App.2011). Because the majority holds otherwise,
a privilege as to those communications, over his client's
                                                                      I respectfully dissent.
clearly-stated objection on the record. Put simply, if Sasser's
trial strategy required waiving a privilege that his client did
not want waived, his representation of her was ineffective,
                                                                      All Citations
especially since it caused the admission of an otherwise
inadmissible extraneous offense.                                      --- S.W.3d ----, 2015 WL 4497773



End of Document                                                   © 2015 Thomson Reuters. No claim to original U.S. Government Works.




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