Opinion issued October 7, 2014
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-12-00200-CR
———————————
LAJUAN CECILE BAILEY, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 174th District Court
Harris County, Texas
Trial Court Case No. 1298261
OPINION
A jury convicted appellant Lajuan Cecile Bailey of bail-jumping and failure
to appear. See TEX PENAL CODE ANN. § 38.10 (West Supp. 2014). It assessed
punishment at 10 years’ confinement and a $10,000 fine. See id. § 12.34. In two
related issues, Bailey contends that she received ineffective assistance of counsel at
trial in connection with her lawyer’s allegedly unauthorized waiver of the attorney-
client communication privilege, and that the trial court erred in overruling her
motion for mistrial on that basis.
To establish a claim of ineffective assistance of counsel on direct appeal, an
affirmative demonstration of deficient attorney performance must be firmly
founded in the record. Here, although Bailey contends that she did not consent to
the waiver of privilege in connection with her trial counsel’s cross-examination of
her former lawyer, the trial judge expressly found that such a waiver in fact had
occurred. Without the benefit of an evidentiary hearing on Bailey’s allegations, the
record is not sufficiently developed for us to conclude that the trial judge’s
determination was in error. Accordingly, we affirm the judgment.
Background
Lajuan Bailey was charged in 2009 with the felony offense of fraudulent use
or possession of identifying information in Harris County. 1 She was charged with a
separate instance of the same crime that same year in Jefferson County. In both
cases, she was released from custody on bond pending trial.
1
See Act of May 26, 2007, 80th Leg., R.S., ch. 1163, § 1, sec. 32.51, 2007
Tex. Gen. Laws 3991, 3992; Act of May 23, 2007, 80th Leg., R.S., ch. 1173,
§§ 1, 2, sec. 32.51, 2007 Tex. Gen. Laws 4012 (current version at TEX.
PENAL CODE ANN. § 32.51 (West Supp. 2014)).
2
Bailey hired attorney Brian Roberts to defend her in both cases. A pretrial
conference was scheduled to be held in Harris County on September 7, 2010.
Fearing that the hearing would preclude him from attending a friend’s funeral,
Roberts arranged to have the conference reset. On September 2, he informed
Bailey that the hearing had been rescheduled to September 21.
On September 8, Bailey’s bond was revoked in Harris County because a new
charge had been filed against her in Brazoria County. The Brazoria County charge,
felon in possession of a firearm, see TEX. PENAL CODE ANN. § 46.04(a) (West
Supp. 2014), had been filed and a warrant had issued for Bailey’s arrest in August
2010.
Bailey was scheduled to come to court in Jefferson County on September 15,
but she did not appear. On September 21, she did not attend the rescheduled
pretrial conference in Harris County. As a consequence, Roberts withdrew from
representing her, Bailey’s bond in Harris County was forfeited, and an alias capias
was issued for her arrest. Bailey was ultimately indicted by a grand jury for bail-
jumping and failure to appear. She hired a new attorney, Jeffrey Sasser, to defend
her.
At trial on the bail-jumping charge, the State indicated its intention to call
the original defense attorney, Roberts, as a witness to testify “about information
regarding resets and information passed on by the defense attorney from the Court
3
to his client for purposes of showing up in court.” Roberts informed the court that
he had told the prosecuting attorney that he would not testify unless compelled to
do so by the court. Accordingly, the State moved to compel his testimony.
The court heard argument on the motion the morning of the first day of trial.
Roberts was present and asserted his unwillingness to divulge information relating
to a former client unless ordered to do so by the court. The State argued that
Roberts could be compelled to testify about his communication of court dates to
Bailey, as the transmission of this information is exempt from the attorney–client
communication privilege under the rule of Austin v. State, 934 S.W.2d 672 (Tex.
Crim. App. 1996). The trial court agreed and granted the State’s motion to compel.
On the first day of trial, the State called as witnesses Bailey’s bondsman and
several Harris County court employees, including the district court coordinator.
The State relied on these witnesses to establish the basic facts supporting its case:
Bailey was charged with a crime, she had been released on bond, she was obligated
to appear in court on September 21, and she did not appear.
On the second day of trial, the State called Roberts to the stand, indicating
that it intended to ask him questions about his representation of Bailey in the
Jefferson County case. Defense attorney Sasser objected, arguing that any mention
of Jefferson County and Bailey’s failure to appear for trial in that case would be
“highly prejudicial” and inadmissible under Rule 403. The State argued that the
4
evidence was admissible under Rule 404(b) in order to show motive or intent. The
court ruled that Jefferson County should not be discussed unless the defense
“opened the door.”
Accordingly, throughout direct examination the State confined its
questioning to the history of the Harris County matter. Roberts testified about the
series of resets in the Harris County case. He explained that he requested the final
reset because a close friend had died and there was a risk the funeral would
coincide with the hearing. He sent a lawyer with whom he shared office space,
Chip Lewis, to obtain the reset. He further confirmed that he had telephoned Bailey
on September 2 and told her about the reset.
During cross-examination, Sasser initially asked questions critical of
Roberts’s handling of the reset. For example, he asked Roberts why he had sent
another attorney to handle it and why he failed to consult with Bailey prior to
rescheduling. Eventually, Sasser changed subjects to the Brazoria County charge,
prompting further discussion of the attorney–client privilege:
[Sasser]: Do you remember having—I know this is real touchy
because of the attorney-client privilege. For purposes
of my questioning, if I ask you a question that invades
attorney-client privilege, you can assume it’s okay to
answer. I’ve talked to my client about this. Okay? I
want to go into specific conversations. I want to have
my client—
[Prosecutor]: Judge, may we approach.
5
(Emphasis supplied.) At the bench, the prosecutor then stated: “I think for Mr.
Roberts’s protection, he’s worried about going into this and he needs to hear that
from the client outside the presence of the jury so that Mr. Roberts is comfortable
that she is allowing him to answer the questions.” The judge then excused the jury
from the courtroom, and the discussion continued in Bailey’s presence:
Sasser: Judge, at this time I anticipate asking Mr. Roberts
about communications that he had with my client
regarding the warrants that came up from Brazoria
County. Not from Jefferson County, not from
Beaumont. We already talked about this earlier, but
the fact, you know, [the prosecutor] had come in here
and gotten the bond revoked, she had these new cases
in Brazoria County, I basically want to talk about the
conversations he might have had with her about that
and the fact—
The Court: You discussed these with your client?
Sasser: Yes, sir, I have.
The Court: Alright. I will allow you to.
Sasser: For my protection, may I get something on the record
from my client?
The Court: Any objection?
Prosecutor: No, Judge. I think for Mr. Roberts, he needs to hear it
out of Ms. Bailey’s mouth that she’s waiving the
privilege between her and the attorney.
Sasser: You just heard what I discussed with the judge.
The Defendant: Only on one case. That’s the only case that was
because I had no other charges. There was only one
case filed.
6
Sasser: Are you waiving the attorney-client privilege by your
prior attorney, Mr. Roberts, for me to question him
regarding communications that you may have had
with him around September 2nd, 2010 regarding your
outstanding cases, the Brazoria cases?
The Defendant: Yes, one case.
The Court: All right. Anything further?
Prosecutor: Not unless Mr. Roberts has questions of his prior
client or has concerns.
Sasser: I think it’s clear she waived the privilege at this point.
I’m offering Mr. Roberts the opportunity if he doesn’t
feel uncomfortable or doesn’t need to make inquiries
so we don’t have to take the jury back out.
Mr. Roberts, do you think that’s adequate for the
attorney-client privilege for you to answer the
questions unencumbered by attorney-client privilege
you used to have with Ms. Bailey?
Roberts: I didn’t quite hear what it is she’s waiving. I don’t feel
comfortable testifying to anything unless I hear
directly from her the particular privileged
conversations that she’s waiving her privilege to. Are
you waiving privilege—
The Defendant: I’m only waiving privilege to the one case that was
filed against me in Brazoria County during this time
because everything did not happen at the same time.
Do you understand what I’m saying?
Roberts: Correct.
The Defendant: There’s only one thing that changed during the whole
time I was on bond, that is the only thing that I’m
talking about and referencing, not everything
subsequent or after the fact.
7
Sasser: She had a gun case, the initial case filed in Brazoria
County, felony possession of a gun. That was the
warrant [the prosecutor] came in and showed you. I
would assume. I wasn’t here, Judge. She picked up
this new case in Brazoria and you revoked her bond.
Roberts: That’s the only thing. Nothing else. I understand.
The Defendant: Just only that.
When questioning resumed, Roberts confirmed that during September 2010,
Bailey had an “open warrant” stemming from the Brazoria County charge. Sasser
then asked Roberts whether he informed Bailey of the seriousness of the warrant
and the need to present herself to authorities:
Q. Well, did you call her every day before the 21st telling her: Hey
you need to turn yourself in, you could be arrested any time,
even coming down to courtroom on the 21st you could be
arrested; did you ever tell her that?
A. I’m sure that we had a conversation that if she has an
outstanding warrant for arrest in either county when she appears
here, these deputies will take her into custody.
....
Q. And she would know she needs to appear in court, even if she
didn’t have an open warrant, the Court would issue a warrant
for her arrest if she didn’t appear? There was already a warrant
for her arrest, so isn’t the purpose of a bond, when you have
your clients—you sign somebody up, don’t you go through how
important it is to show up in court?
A. Yes.
Q. You tell them: If you don’t show up to court, your bond is
going to be revoked, don’t you?
8
A. Yes.
Q. Provided it’s already been revoked, so what was the hammer—
what was the hammer over her head to show up on the 21st, she
was already going in custody, which is the same thing, could
have happened on the 8th—excuse me—whenever the Brazoria
County case was filed. You don’t know when that is, you
don’t—
A. I don’t have that in front of me right now.
....
Q. You don’t have a note of that in your file, you have a note of
that when you made the phone call [informing Bailey of the
reset]?
A. No, I don’t have a note of that, Mr. Sasser. She’s still required
to appear in court. Whether there’s a warrant or not, she’s
required to appear.
Further questions followed, critically probing Roberts’s investigation of the
Brazoria County charges.
Sasser next turned to the motion to withdraw filed by Roberts in Harris
County on September 21. After Roberts confirmed that he filed the motion to
withdraw because he knew that Bailey would not be coming to court, Sasser asked
how Roberts knew in advance that she was not going to appear. Roberts replied,
“Y’all might want to approach on that one.” A short discussion at the bench
followed:
The Court: What have you got?
Sasser: Are you going to rule on Jefferson County?
9
Prosecutor: He’s asked the question. You asked the question. I
don’t object.
Sasser: That’s fine.
The Court: Fine.
Sasser then resumed his questioning before the jury:
Sasser: The question is – the question is that he already had in
the motion to withdraw the reason he was
withdrawing is because she didn’t show up for court.
I’m asking: How did he know she wasn’t going to
show for court.
You can answer that.
Roberts: Judge?
The Court: You may.
Roberts: Because she had another setting in Jefferson on
September 15 and she informed me she had no
intention of appearing in Jefferson County. I also
received a phone call from . . . her co-defendant’s
mother, who told me the night before that she was not
going to appear in court.
Sasser: Okay. That who wasn’t going to appear?
Roberts: Ms. Bailey was not going to appear.
Sasser: In Beaumont [i.e., Jefferson County]?
Roberts: Correct.
Sasser followed with a series of questions about Roberts’s representation of
Bailey in Jefferson County. He elicited testimony about Roberts’s plans with
Bailey to settle both her Harris County and Jefferson County charges together.
10
Roberts confirmed that the authorities in Jefferson County had been willing to
accept a plea bargain whereby Bailey would serve six months in jail. However,
Roberts had been unable to negotiate a comparable agreement with Harris County
officials in order to reach a final resolution to both cases. In this regard, Sasser then
asked:
Q. And you’ve been working hard to that end, correct?
A. Correct.
Q. In fact, my client [Bailey] had actually met with the prosecutor
and talked with the prosecutor and investigators, correct?
A. She did.
Q. Okay. So, she was doing her part, wouldn’t you agree, to get
whatever you were trying to do in her case. I mean, she was
cooperating?
A. That’s –
Q. Open for debate?
A. Well, she did cooperate. The cooperation was not long after I
was retained on the case. If you’re asking me about later, you
might—I don’t know how—what exactly it is that you’re
asking. I don’t know how to answer.
Q. We’ll get through this. It’s all out right now. The jury is going
to hear about everything. Don’t worry about the attorney-client.
Everything has been waived at this point.
(Emphasis supplied). Sasser’s subsequent questions attempted to connect the threat
of arrest posed by the Brazoria County warrants with the continuing efforts to
reach a negotiated resolution of the charges in Harris and Jefferson Counties.
11
The exchange between defense attorney and former-attorney witness
apparently became heated when Sasser asked questions suggesting that Roberts,
along with his office-mate Lewis, had been demanding higher fees of Bailey in the
wake of the Brazoria County charges:
Sasser: Basically, weren’t you telling her she needed to come
up with the money you wanted for trial – you were set
for trial, if you came up with this money, you would
take care of all the problems?
Roberts: No. That was not the nature of the conversation. Tread
lightly if you accuse me of something.
Sasser: Excuse me. I’d ask the witness not to argue with me.
I’m just doing my job. I’m conducting cross-
examination. That’s all I’m doing.
Roberts: I understand that, but if there’s an implication of some
kind of wrongdoing, Mr. Sasser, you had better be
either –
Sasser: So, I’m extremely clear –
The Court: Are y’all –
Sasser: I’m extremely clear about what my client told me –
The Court: Just a minute. Go with your questioning. Only your
questioning.
Sasser: Isn’t it true in this meeting you had in your office that,
basically, the subject of it was, look, you need to get
this money, you’ve got lots of problems, Ms. Bailey,
you’ve got problems in Brazoria County, still got an
outstanding case in Beaumont, got the case in
Houston, you need to come up with some more
money to take care of this, do a no-arrest bond? You
never told her that?
12
Roberts: That is not correct. If she wanted to hire us on the
Brazoria County case, yes, that’s what the discussion
was. There was not a discussion for her to give me
more money over and above what the contract stated
for her Beaumont case and Harris County case, that is
not correct.
Sasser: So, you didn’t – $7500, that’s in your contract?
Roberts: Correct. That is the trial fee for the Jefferson County
case and this case.
Sasser: And do you have a copy of that contract we can have?
Roberts: That’s up to the client if she wants to release that.
(Pause)
(Off-the-record discussion between attorney and defendant)
The Court: Are we ready to proceed or not?
Sasser: Yes, sir.
Thus Roberts denied attempting to charge Bailey more for the cases he had been
retained to handle in Jefferson and Harris Counties, and he also explained that
Lewis did offer to defend her against the fresh charges in Brazoria County for an
additional fee.
Sasser eventually asked Roberts whether he warned Bailey that she would be
“making a huge mistake” by not appearing and forsaking the opportunity for the
plea bargains he had been negotiating. Roberts replied that on September 14 he had
emailed, texted, and called Bailey to advise her of what would happen if she did
not come to court in Jefferson County. Sasser asked whether Roberts had “that”
13
with him, and Roberts confirmed that he did. At that point, the transcript indicates
another “[o]ff-the-record discussion between attorney and defendant.”
At Sasser’s request, Roberts then read from his email to Bailey:
Roberts: . . . Chip informed me . . . you do not plan on
appearing in court at Jefferson County. . . . I strongly
advise you to appear in court. You will only make
your situation worse by not appearing in court. The
likely result, your bond will be revoked, D.A. file a
bond jumping charge, which is a third degree felony.
Also, necessarily complicates your Harris County
case. Again, I’m advising you to appear in court
tomorrow.
Roberts further testified that Bailey called him in response to this message. The
cross-examination continued:
Sasser: Okay. When she told you that she wasn’t going to
Beaumont, did you – did you try to call her and
convince her that she needed to you? [sic]
Roberts: How much more calling and convincing can I do
besides an e-mail, text, and phone conversation that
lasted 30 minutes?
Sasser: Do you have those records with you?
Roberts: I have them right here.
Sasser: I’d like to see them.
Roberts: Judge, this contains my handwritten notes, which may
be privileged. If she’d like to waive that.
Sasser: This is your handwritten notes?
Roberts: No. Those are my handwritten notes on an e-mail I
sent to her.
14
Sasser: You actually have the e-mail. Did you print that out?
Roberts: That’s what those notes are.
Sasser: Thank you.
The prosecutor then asked to approach, and the record indicates the following:
(At the Bench, on the record)
The Court: We’re right back where we started.
(Off-the-record discussion between attorney and defendant)
The Court: Sir, what do you need?
Prosecutor: Judge, it’s not an objection. I just want to get it on the
record, because it may not be clear on the record, that
Mr. Roberts provided you with a document that
Mr. Sasser is going to look at. Previous to Mr. Sasser
getting it, you ordered the clerk to make a copy.
Handwritten notes – as a protection of Mr. Roberts
attorney-client privilege revealed. I just want to be
clear on the record.
The Court: All right. Let the record so reflect.
Sasser: May I take a look at them?
The Court: They’re coming right back in a minute, as soon as I
get them back.
(Pause)
(Open court, defendant and jury present)
The Court: We’re going to take a 10-minute break. Please go
back there for a few minutes.
(Recess)
(Open court, no jury, defendant present)
15
The Court: Let’s get on the record and take care of the matter of
the privilege. I understand that we have opened the
door, we have come into both the Jefferson County
charges and the Brazoria County charges, along with
the charge here. Is that your understanding.
Prosecutor: Obviously during the testimony Mr. Sasser asked
about it, Judge. And Mr. Sasser said very clearly on
the record his client waived the privilege before
Mr. Roberts answered the question. However, out of
an abundance of caution and to make it abundantly
clear for the record, I think the Court ought to hear
from the defendant that Mr. Sasser was correct, she
waived her privilege also as to the Jefferson County
transactions.
The Defendant: Am I allowed—I do have a problem. I was very
specific in saying that I wanted to stick to the Brazoria
County charge. I was very, very specific in the very
beginning. And I don’t know if I can stand up and
object to something because I’ve never gone to trial
before, which is why I was very specific about it in
the first place. And because I do know, like, he
argued—
The Court: Okay. We understand. Do you have anything to add?
Sasser: No, sir.
The Court: I think the door has been opened as to both charges.
They will come in.
Roberts: I do have an issue with it. Mr. Sasser did clearly say:
It’s okay, the privilege—my client has waived
privilege on that.
The Court: It’s not his privilege. It’s your client’s privilege—
former client’s privilege. Anything further?
Roberts: Judge, if she’s—it’s my understanding that she
advised her lawyer while at counsel table the
16
privilege is waived. If she’s not waiving that privilege,
I can’t testify any further to anything on the Jefferson
County case.
Prosecutor: Judge, I also do have something to add on the record.
Mr. Sasser went into a series of questions regarding
the Jefferson County case after he announced to the
witness, to the Court, to the jury, to the prosecutor
that his client had waived the privilege. In my
opinion, making it very clear his client had waived
privilege during the course of questioning, which
lasted several minutes. The defendant was not making
any attempt to get her attorney to stop asking
questions about the Jefferson County case. As a
matter of fact, it was clearly obvious to me she could
have simply—for purposes of the record, the entire
time she’s been communicating in writing and orally
with her lawyer. Very clearly, she’s sitting right next
to him. I did not see her try to get Mr. Sasser to stop
asking questions at any time regarding the Jefferson
County case. She could have clearly stopped
Mr. Sasser from asking questions in that regard if she
wanted to assert any type of privilege. Clearly,
Mr. Sasser is asking the questions in an attempt to
help her be defended in this case.
The Defendant: Can I say something at this point? See, that’s what
I’m saying.
The Court: No. No.
Sasser: May I respond, Your Honor?
The Court: You may.
Sasser: It’s true we were talking during the questioning, but
in fairness to my client, she did—she did write a note
here: We can deal with this without bringing in
Jefferson County. Just in response to [the
prosecutor’s] comment, she did write that down. I am
her attorney and I did say that, but I think Mr. Roberts
17
is right, I don’t think I can—I don’t think I can waive
her privilege. I think she has to do that. By me stating
that, I certainly think I overstepped my bounds on that
by—
Roberts: I was led to believe she did waive the privilege, which
puts me in a precarious spot.
Prosecutor: I do assert the defendant could have simply told her
lawyer: I’m asserting the privilege. She never did that.
It was very clear to everybody in the courtroom,
Mr. Sasser, she’s waiving the privilege. As you
pointed out, Judge, it’s the defendant’s privilege and
she did not assert it.
The Court: Anything further?
Sasser: I mean, she’s talking to me. I don’t know exactly what
to tell the Court. She’s telling me she did—
The Court: I’ll give you two minutes. Talk to your client right
now.
Sasser: Judge, the defendant basically has just advised me she
didn’t realize she had the right to do that, the right to
disrupt the proceedings or speak out like that, and that
if she had known she could have, she would have.
Prosecutor: Clearly, the defendant was talking to her lawyer the
entire trial. We’re not talking about disrupting the
proceedings. The defendant could have whispered in
the defense attorney’s ear or written pages of notes in
this entire trial. She did not do that when she heard
her attorney waive the privilege or announce the
privilege waived. It’s her obligation to assert the
privilege and she did not do that.
....
Roberts: Judge, I’m not sure if Ms. Bailey is now saying she’s
asserting her privilege. I can’t testify further with
18
regard to Jefferson County, so I don’t know how
Mr. Sasser wants to handle this.
Prosecutor: How is the State supposed to handle testimony by
Jefferson County since it’s already been brought out
on direct?
....
The Court: It’s obviously in the record. The question is: Will he
be able to continue to testify?
Roberts: I don’t think I can. I was led to believe Ms. Bailey
waived her privilege to—the Jefferson County
privilege. She’s saying she didn’t. I cannot testify any
further on Jefferson County.
Prosecutor: I’m not saying that I would ask him any additional
questions. I’m not proposing Mr. Sasser ask any
additional questions out of an abundance of caution.
My assertion is I would like it very clear it’s the
defendant’s privilege to assert. The defendant did not
assert the privilege after she heard the attorney tell
Mr. Roberts the privilege was waived, which gave
Mr. Roberts the opinion that the defendant waived the
privilege. Therefore, the privilege is waived in effect.
And out of an abundance of caution, I don’t think we
should talk about anything in Jefferson County, only
things in the record, but the defendant has waived her
privilege.
The Court: That is the ruling I’m going to make as soon as we get
back from lunch.
....
Prosecutor: You said you would make an official ruling regarding
the privileged matter.
The Court: I don’t think it’s privileged anymore.
19
Prosecutor: You believe the defendant has waived her privilege?
The Court: I do.
(Emphasis supplied.) When trial resumed the next day, the parties continued
to debate the privilege issue:
Sasser: Your honor, yesterday when we broke—before we
broke, I had basically—I was cross-examining Brian
Roberts, an attorney called by the prosecution. And
before he testified, we had approached—just to kind
of recap chronologically what happened yesterday
morning before he testified—we approached John, the
prosecutor, in an attempt to get in some confidential
communications. He was going to try to get in some
confidential communications. You ruled those in-
camera and ruled those were admissible and the
testimony regarding his representation of my client
went forward. In that questioning, it also became
apparent to me that my client wanted to waive the
attorney-client privilege in regard to a particular issue.
That issue was the open case in Brazoria County. And
she specifically, on the record, got up and waived her
privilege to those matters only. When I was cross-
examining the witness, I improperly demanded that
the witness—or kept insisting that the witness answer
a question that violated—that the answer violated the
attorney–client privilege in regards to an issue other
than the Brazoria County case. During the exchange
with the—with Mr. Roberts, my client was attempting
to tell me something, but because I was in the heat of
questioning, I was intent on the questioning, I wasn’t
listening to her intently. She did make a note on this
pad. She was making notes asking: We can deal with
this without bringing in Jefferson County at all,
correct? And I didn’t see that until after I had already
gotten Mr. Roberts to answer that question.
20
That being said, I went home and did research and it’s
my opinion, pursuant to Rule 503, that the defendant
holds the privilege and that she is the only person that
can waive that privilege. I don’t have the authority to
waive that privilege. I know that I—on the record and
during the course of my questioning of Mr. Roberts, I
know I stated that she had waived the privilege and he
can answer the question. I certainly don’t blame him
for doing that, but it was improper for me to say that, I
think. After speaking with her at the jail, I know it
was against her wishes.
Therefore, because of the privileged communications
that came in to the jury, I feel that she’s been
prejudiced to an extent that it requires a mistrial.
Therefore, I’m making a Motion for Mistrial. I know
it’s unusual for a party that created it, the mistake, to
ask for a mistrial. However, in this case, I think the
Court is clear—or should be clear that I didn’t do it
intentionally. I certainly wasn’t trying to set up a
scenario where a mistrial would be granted.
Nevertheless, because of the way things unfolded
yesterday, I think that—first of all, that if the Court
doesn’t grant the mistrial, we should not continue any
more confidential communications that might have
occurred between my client and Mr. Roberts. And if
you don’t grant the mistrial, that the portion that was
read into the record be stricken from the record and
that the jury be asked to not consider that as evidence
in this case.
Prosecutor: Judge, I believe that Mr. Sasser’s assertions have
changed a small amount from yesterday in that he is
telling us now that his client did assert her privilege
after—subsequently to him announcing to the Court,
to the witness, to the State that the privilege had been
waived. I don’t recall that being said yesterday. And I
would testify, if I were on the stand at any point, that
the defendant has been communicating continually
with her lawyer via writing and spoken word this
21
entire trial. Observations from this distance is that
there are pages of notes she’s written to her lawyer.
And the note that the lawyer—that Mr. Sasser just
read was simply a question: Can we do this without
getting into Jefferson County? That’s not an assertion
of anything. That’s a question.
She heard her client—or her heard her lawyer waive
her privilege and say that her privilege was being
waived, just like everybody else did. And she sat there
for a series of questions—not one or two or three, an
entire topic—and failed to assert her privilege. She,
obviously, believed, because she’s an intelligent
person who’s been communicating with her lawyer
the entire trial, this was effective for her defense.
I think the Court will remember from yesterday that a
substantial portion of the cross-examination that
occurred later were basically accusations against
Mr. Roberts that he was not communicating
sufficiently with his client, that he did not
communicate the court date to his client, which would
have been not illegal, but improper. That he was
trying to bilk additional money or Mr. Lewis was
trying to bilk additional money out of the defendant
based on her situation she had gotten herself into by
the time Jefferson County was brought up. Mr. Sasser,
through his cross-examination – and we all understand
he was doing his best in cross-examination for his
client’s interest – had started to imply, if not directly
accuse via the questioning, that Mr. Roberts had done
something improper. That automatically would have
freed Mr. Roberts up, regardless of what this
defendant wanted to happen, to talk about privileged
communications in order to defend himself. I believe
that part of the law is very clear.
So, there are a few reasons that the Court should not
grant a mistrial and a few reasons why the information
that was gone into was not privileged. Number one,
22
they were accusing Mr. Roberts of something,
therefore, the privilege disappears so he can defend
himself. Number two, it was brought up by the
defense as a contemplated part of their defense.
Number three, the defendant did not assert her
privilege after hearing her lawyer say: The privilege is
waived, go ahead and answer the question. And she
very easily could have done that over the long period
of time at some point, Judge.
....
(Emphasis supplied.) The trial court denied the motion to strike and the motion for
mistrial.
After the court’s ruling on his motions, Sasser briefly continued his cross-
examination of Roberts. He elicited testimony that although Roberts had called,
texted, and emailed Bailey admonishing her to appear in Jefferson County the day
before her scheduled appearance, he did not repeat these communications in regard
to Harris County. In phrasing his questions, Sasser emphasized that Bailey’s bond
had been revoked in Harris County prior to her scheduled appearance on
September 21, whereas in Jefferson County, Bailey’s bond had not been revoked
prior to her failure to appear there on September 15.
Once the State rested, the defense called Bailey to the stand. Bailey
emphasized that she had not wanted to be taken into custody on the Brazoria
County warrants because she wanted the opportunity “to take care of everything”
and have her “fair day in court.” She also discussed meetings in which Roberts’s
23
officemate, Lewis, offered to defend her against the Brazoria County charge for
$30,000. According to Bailey, in addition to allowing Roberts to attend a funeral,
the rescheduling of the Harris County hearing also served the purpose of giving her
“more time out there in the free world to get money together to give attorneys.”
She thus testified that she did not appear in Jefferson County because she “wasn’t
prepared” for her bond revocation in Harris County, and she was under the
“impression” that her attorney’s “plan” was to consolidate and resolve all of the
pending charges. When Bailey was asked why she did not appear in Harris County
on September 21, she answered, “Because according to the agreement I had on the
bail agreement, my bond was revoked.” Bailey went on to explain that she had a
background in real estate, was familiar with contracts, and thought that her contract
and further obligation to appear had been “voided out” by the revocation of her
bond on September 8. After Bailey gave her testimony, the defense called the
bondsman, who confirmed that the bond had been revoked on September 8, and
that from “the 8th to the 21st she had no bond.”
In his closing argument, Sasser admitted that Bailey had failed to appear but
argued that the jury should acquit her because she had a reasonable excuse.2 He
2
The jury charge contained an instruction on the defense of reasonable excuse
that specifically addressed Bailey’s claim that she had believed the
revocation of her Harris County bond on September 8 relieved her of the
24
contrasted Bailey’s situation in Jefferson County, where her bond had not been
revoked, and her circumstances in Harris County, where bond had been revoked
prior to her scheduled appearance. He noted that Roberts had specifically warned
Bailey to appear in Jefferson County, but he had not so warned her with respect to
Harris County. He also argued that the bondsman had shared her belief that
revocation of her bond on September 8 had ended her obligation to appear on
September 21. Finally, he emphasized Bailey’s desire to remain free from custody
so that she could gather money to hire Lewis as her attorney in Brazoria County
and consummate her plans with Roberts to resolve the Jefferson County and Harris
County charges together.
The jury found Bailey guilty, and after a hearing on punishment, imposed a
fine of $10,000 and a prison sentence of ten years. The judge entered judgment on
the jury’s verdict. Bailey filed notice of appeal and Sasser moved to withdraw on
February 21, 2012. On the same document, Bailey represented to the court that she
was indigent, and she asked the court to immediately appoint appellate counsel to
represent her, order a free record be provided, and set bail. The court conducted a
hearing and on February 22, 2012 signed the following order:
obligation to attend court on September 21. See TEX PENAL CODE ANN.
§ 38.10(c).
25
In summary, the trial court:
• found that Bailey was indigent for the purpose of employing counsel;
• granted Sasser’s motion to withdraw;
• denied the motion to find Bailey indigent (despite having previously so
found); and
• purported to grant the motion to appoint appellate counsel; yet
• left blank the line on which the appointed appellate counsel would have been
named.
No motion was filed to clarify or correct the February 22, 2012 order, nor
were any other post-judgment motions filed. On April 25, 2012, this court abated
the appeal and remanded the case for appointment of counsel. Even then, an
26
appellate attorney was not appointed until September 5, 2012, when the Harris
County Public Defender’s office appeared in the trial court. 3
Analysis
Bailey argues that she received ineffective assistance of counsel, but only
based upon Sasser’s questions which elicited testimony about attorney-client
communications. In the alternative, Bailey contends that the trial court erred by
denying her motion for mistrial on the basis of the alleged privilege violation.
I. Ineffective assistance of counsel
Claims that a defendant received ineffective assistance of counsel are
governed by the standard announced by the United States Supreme Court in
Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052 (1984). Strickland
mandates a two-part test: (1) whether the attorney’s performance was deficient,
i.e., did counsel make errors so serious that he or she was not functioning as the
3
We note that through no apparent fault of her own, Bailey apparently lacked
any appointed counsel from February 22, 2012 to September 5, 2012.
Generally, a motion for new trial must be filed no later than 30 days after the
trial court imposes sentence in open court. TEX. R. APP. P. 21.4. As such, the
deadline for filing a motion for new trial lapsed during the time when Bailey
apparently lacked any assistance of counsel. Once appointed, appellate
counsel had no opportunity to raise her claims of ineffective assistance of
counsel by motion for new trial, a procedure which would have permitted an
evidentiary hearing “to consider the facts, circumstances, and rationale
behind counsel’s actions . . . .” Thompson v. State, 9 S.W.3d 808, 814 (Tex.
Crim. App. 1999).
27
“counsel” guaranteed by the Sixth Amendment; and if so, (2) whether that
deficient performance prejudiced the party’s defense. 466 U.S. 668, 687, 104 S. Ct.
2052, 2064.
The adequacy of attorney performance is judged against what is reasonable
considering prevailing professional norms. Id. at 688, 104 S. Ct. at 2065. There is a
presumption that, considering the circumstances, a lawyer’s choices were
reasonably professional and motivated by sound trial strategy. Id. at 689, 104 S. Ct.
at 2065. In the face of this presumption, a criminal defendant has the burden of
showing by a preponderance of the evidence that his attorney failed to provide
reasonably effective assistance. Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim.
App. 2002). Limitations of the record often render a direct appeal ineffective to
adequately raise a claim of ineffective assistance of counsel. See Goodspeed v.
State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005). Critically, “[a]n ineffective-
assistance claim must be firmly founded in the record and the record must
affirmatively demonstrate the meritorious nature of the claim.” Menefield v. State,
363 S.W.3d 591, 592 (Tex. Crim. App. 2012); see also Thompson v. State, 9
S.W.3d 808, 813 (Tex. Crim. App. 1999). That necessary firm foundation is
lacking in this direct appeal.
Bailey contends that while she waived privilege with regard to charges
against her in Brazoria County, she specifically excluded the Jefferson County
28
charges from the scope of her waiver. She contends that “the evidence shows that
trial counsel’s breach of the attorney-client privilege was without consent.” The
evidence includes her explicit statements on the record that came before and after
the cross-examination at issue. Before her former attorney began answering
questions about their communications, Bailey stated in open court that she was
confining her consent to communications about only one case—the Brazoria
County charges. Then, after her trial attorney’s extensive questioning about
communications relating to the Jefferson County charge, she later reiterated that
she previously had been “very specific in saying” that she “wanted to stick to the
Brazoria County charge.” Moreover, according to Bailey’s trial counsel, in the
midst of the questioning she wrote him a note that said: “We can deal with this
without bringing in Jefferson County.” Based on this information and the principle
that the privilege belongs to the client, that trial lawyer subsequently “fell on his
sword” and admitted his instructions to the witness about the scope of the waiver
were “improper.”
We acknowledge that this evidence is substantial, but nevertheless it is not
conclusive as to an absence of waiver, particularly in light of the trial court’s ruling
to the contrary. Bailey’s depiction of the record is materially incomplete in its
failure to acknowledge and address the totality of the circumstances and the
29
reasonable inferences therefrom, including other aspects of the record that do
suggest a waiver of the privilege, her statements on the record notwithstanding.
It was Bailey’s former attorney, Roberts, who provoked the initial privilege
discussion at an early stage by indicating his pretrial refusal to testify about
communications with his former client absent a court order directing him to do so.
This resulted in Bailey’s initial statement that she was limiting her waiver of
privilege to the Brazoria County charges, and Roberts sought clarification to
ensure his clear understanding of the scope of waiver. Subsequently, Roberts was
cross-examined about his former representation of Bailey, with the apparent
defense strategy of discrediting the former attorney in an attempt to convince the
jury that Bailey had a reasonable excuse for her failure to appear. Over the course
of that cross-examination, the record reflects extensive continuing discussion about
the privilege issue in multiple bench conferences outside the presence of the jury.
Under the pressures of a cross-examination that placed his professionalism
at issue, Roberts continued to display an admirable sensitivity to respecting his
former client’s privilege. When the questioning about his client communications
first veered away from the Brazoria County charges, it was again Roberts who
provoked a careful consideration of how the cross-examination was unfolding.
When asked how he knew that Bailey would not be coming to court for a hearing
in Harris County (such that it was recited in the written motion he had brought with
30
him to court on the date of the hearing as a reason supporting his request to
withdraw), Roberts suggested that counsel “might want to approach” the bench.
The ensuing bench conference yielded no clarity with respect to the privilege, and
Bailey’s trial counsel asked the question again, specifically instructing the witness:
“You can answer that.” Roberts sought guidance from the trial judge, who stated
“You may.”
From that point, the cross-examination continued to erode Bailey’s
previously stated limitation on the scope of her consent, and Roberts continued to
respond with caution. When probed about Bailey’s level of “cooperation” with
efforts to negotiate resolution of the various charges, Roberts expressed frustration
that he didn’t know what was being asked or how to answer. His continuing
concern about respecting the privilege was acknowledged by defense counsel, who
assured him: “We’ll get through this. It’s all out right now. The jury is going to
hear about everything. Don’t worry about the attorney-client. Everything has been
waived at this point.” The issue arose again when Roberts was cross-examined
about his contractual arrangements with Bailey, and again he resisted questions
about his client communications by stating it was “up to the client” whether she
wanted to make their contract available as evidence.
The cross-examination further progressed into an exploration of
communications about appearing for the Jefferson County proceedings, beginning
31
with an abstract acknowledgment of communications by text message, email, and
phone conversation, which did not initially divulge the substance of those
communications. Then, critically, the record indicates an “[o]ff-the-record
discussion between attorney and defendant,” immediately followed by questions
eliciting the substance of “exactly” what Roberts communicated to Bailey by text
and email. Roberts complied by reading the text of his email correspondence to
Bailey. Defense counsel continued to probe further still by asking to see the actual
documents. Roberts informed the judge that the documents reflected his
handwritten notes, “which may be privileged.” The prosecutor requested a
discussion at the bench, and the record reflects that yet another off-the-record
discussion occurred between Bailey and her trial counsel. Whatever was discussed,
defense counsel then continued to pursue his line of cross-examination by
reiterating his request to see Roberts’s notes. For a reason not explained by the trial
transcript, there then was a “(Pause),” and the trial judge excused the jury to once
again address “the matter of the privilege” on the record. It was during this
conference that Bailey spoke up again and re-asserted her previously expressed
desire to “stick to the Brazoria County charge.”
On appeal, Bailey attributes great significance to her trial lawyer’s
contemporaneous reaction, which she characterizes as “falling on his sword.” But
at the same time, Roberts expressed his exasperation, spontaneously stating: “I was
32
led to believe she did waive the privilege, which puts me in a precarious spot.” The
prosecutor—an interested party to be sure—added material color to the record by
observing that Bailey’s waiver “was very clear to everybody in the courtroom.”
The prosecutor stated that “the defendant was talking to her lawyer the entire trial,”
and this assertion is corroborated by the trial transcript which, as detailed above, is
punctuated throughout the critical portions of the proceedings with indications of
off-the-record consultation between Bailey and her trial counsel.
Thus, despite the on-the-record statements of Bailey and her trial counsel,
there was a dispute in the courtroom about what had transpired off the record over
the course of the cross-examination of Roberts. “[T]he totality of the circumstances
and reasonable inferences therefrom may support a finding of waiver.” Carmona v.
State, 941 S.W.2d 949, 954 (Tex. Crim. App. 1997); Wright v. State, 374 S.W.3d
564, 579 (Tex. App.—Houston [14th Dist.] 2012, pet. ref’d). Having witnessed all
of these interactions, the trial judge ruled that Bailey had waived her privilege.
In sum, the trial record is conflicted and inadequately developed on the
important question of whether Bailey waived her privilege as to conversations she
had with Roberts regarding Jefferson County. While the record does contain some
evidence that defense counsel exceeded the scope of Bailey’s waiver of privilege,
the evidence was disputed, the trial court concluded that the privilege had been
waived, and it expressly so ruled. Like other evidentiary rulings, a trial court’s
33
ruling determining that a privilege has been waived is reviewed for abuse of
discretion, is upheld when it is within the zone of reasonable disagreement, and
may not be reversed “solely because the appellate court disagrees with the
decision.” Cameron v. State, 241 S.W.3d 15, 19–20 (Tex. Crim. App. 2007).4
4
The dissent reaches the opposite conclusion by accepting Bailey’s and
Sasser’s statements as the conclusive facts concerning their communications,
discounting the possibility that Bailey might have in fact authorized the line
of questioning at issue, and drawing the firm conclusion that she did not
waive her privilege. As noted above, the trial judge, who was in a better
position in the courtroom to observe these events as they transpired,
concluded otherwise, and the dissent does not contend that there was no
evidence to support that conclusion. The case identified in the dissent, Ex
parte Varelas, 45 S.W.3d 627 (Tex. Crim. App. 2001), provides no authority
for overriding the trial judge’s discretion as to this issue. Unlike Bailey’s
direct appeal, which comes to us without the benefit of a post-trial
evidentiary hearing, Varelas was an appeal from the denial of a post-
conviction application for a writ of habeas corpus. Varelas, 45 S.W.3d at
629. On the direct appeal in that case, the Court of Criminal Appeals had
rejected the appellant’s claim of ineffective assistance, noting the
inadequacy of the record. Id. at 632 (citing Varelas v. State, No. 72,178, slip
op. at 10–11 (Tex. Crim. App. Mar. 4, 1997) (not designated for
publication)). The crucial Varelas affidavit was submitted after trial had
concluded, in the context of the post-conviction habeas proceeding. On the
particular facts of that case, the Court concluded that the trial court’s finding
that trial counsel had used sound trial strategy in not requesting a limiting
instruction relating to evidence of the appellant’s extraneous acts was
“unsupported by the record.” Id. at 632 n.5; see also id. at 646–47 (Holland,
J., concurring in the denial of rehearing) (“I stand by the Court’s opinion that
there is no evidence in the record to suggest that the failure to request
limiting instructions was the result of trial strategy.”). Varelas thus involved
a record that gave no support to the trial court’s crucial factual finding in
support of its ruling, and as such it is readily distinguishable from this direct
appeal and its conflicted record relating to the waiver issue.
34
Under the circumstances of this record, we cannot conclude that the trial court
abused its discretion in finding waiver based on the totality of the circumstances
and the reasonable inferences therefrom, nor can we conclude that the record
otherwise provides a firm foundation that affirmatively establishes that privileged
testimony was elicited without Bailey’s consent.
We hold that the record in this case does not conclusively establish that trial
counsel’s questions about Jefferson County were so outrageous that no reasonable
attorney would have asked them. We draw this conclusion in light of the
conflicting record with respect to the allegation of deficient performance, including
the trial court’s finding of waiver, as well as the context of the evident defense
strategy in pursuing the line of questioning. We are also mindful that “trial counsel
should ordinarily be afforded an opportunity to explain his actions before being
denounced as ineffective,” Rylander v. State, 101 S.W.3d 107, 111 (Tex. Crim.
App. 2003), and that has not yet happened in this case outside the context of trial
counsel’s active, ongoing representation of Bailey. 5 Finally, we have considered
5
See also State v. Thomas, 428 S.W.3d 99, 106 (Tex. Crim. App. 2014)
(“When counsel faces an ineffective-assistance claim, the attorney-client
privilege is waived, and trial counsel has the opportunity to explain his
actions.”); Bone, 77 S.W.3d at 836 (“Under our system of justice, the
criminal defendant is entitled to an opportunity to explain himself and
present evidence on his behalf. His counsel should ordinarily be accorded an
opportunity to explain her actions before being condemned as unprofessional
and incompetent.”).
35
other examples of alleged misconduct that the Court of Criminal Appeals has
found insufficiently outrageous to support a finding of deficient performance in the
absence of an explanation by counsel.6
Our holding is based solely on our consideration of the deficient-
performance prong of Strickland. As the Court of Criminal Appeals has held, “The
general doctrine that forbids an application for writ of habeas corpus after direct
appeal has addressed the issue does not apply in these situations.” Thompson, 9
S.W.3d at 814. As such, Bailey may resubmit her claim by way of an application
for writ of habeas corpus. Id.; see also Rylander, 101 S.W.3d at 111 n.1; Bone, 77
S.W.3d at 837 n.30; Varelas, 45 S.W.3d at 629–30. “This would provide an
opportunity to conduct a dedicated hearing to consider the facts, circumstances,
and rationale behind counsel’s actions . . . .” Thompson, 9 S.W.3d at 814. Should
Bailey wish to pursue habeas corpus relief and should counsel be appointed to
represent her, it would be her first opportunity as an indigent defendant to develop
her claim of ineffective assistance of counsel at a hearing with the benefit of the
assistance of counsel.
6
See, e.g., Menefield, 363 S.W.3d at 592 (failure to object to an infringement
of the client’s right to confront witnesses); Goodspeed, 187 S.W.3d at 391
(failure to ask questions on voir dire); Thompson, 9 S.W.3d at 814 (failing to
continue objecting to significant hearsay).
36
Although there is no constitutional right to appointment of counsel to pursue
a writ of habeas corpus, Ex parte Graves, 70 S.W.3d 103, 110–11 (Tex. Crim.
App. 2002), an indigent defendant may request appointment of counsel to seek a
writ. The judges of county courts, statutory courts, and district courts trying
criminal cases in each county are authorized to appoint counsel for indigent
defendants in the county. TEX. CODE CRIM. PROC. ANN. art. 26.04(a), (b)(1) (West
Supp. 2014). If the court concludes “that the interests of justice require
representation,” it must appoint counsel to aid the defendant in pursuing the writ.
See id. art. 1.051(d). Under similar circumstances, this court once previously
observed: “We cannot presume that the trial judge, if faced with a serious habeas
petition and having legislative authority to appoint and compensate counsel, would
decline to do so.” Muldrew v. State, No. 01–86–00153–CR, 1987 WL 33896, at *4
(Tex. App.—Houston [1st Dist.] Dec. 31, 1987, pet. ref’d). Similarly here, we
equally trust that a trial court judge having legislative authority to appoint and
compensate counsel would not decline to appoint habeas counsel for an indigent
defendant whose appellate counsel was appointed too late to take advantage of her
only prior opportunity for an evidentiary hearing on her claim of ineffective
assistance of counsel.
37
II. Mistrial
Bailey argues that the trial court abused its discretion when it denied her
motion for mistrial. She claims that Roberts’s disclosure of privileged information
was highly prejudicial, that no curative measures were taken by the court, and that
the disclosure likely affected the jury’s verdict.
The testimony of which Bailey complains was introduced by her own
attorney. “[A] defendant may not complain of evidence elicited by his own
attorney.” Ex parte Ewing, 570 S.W.2d 941, 948 (Tex. Crim. App. [Panel Op.]
1978); see also Durrough v. State, 672 S.W.2d 860, 873 (Tex. App.—Corpus
Christi 1984) (“A defendant may not complain of evidence elicited by his own
attorney on cross-examination.”), remanded on other grounds, 693 S.W.2d 404
(Tex. Crim. App. 1985). Therefore, the trial court did not abuse its discretion in
refusing to grant a mistrial. Bailey’s second issue is overruled.
38
Conclusion
We affirm the judgment of the trial court.
Michael Massengale
Justice
Panel consists of Chief Justice Radack, Justice Massengale, and Justice Huddle.
Chief Justice Radack, dissenting.
Publish. TEX. R. APP. P. 47.2(b).
39