Lajuan Cecile Bailey v. State

Opinion on en banc reconsideration issued July 23, 2015

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 ON EN BANC RECONSIDERATION*

*
We grant appellant’s motion for en banc reconsideration, withdraw our
opinion of October 7, 2014, vacate our judgment of the same date, and issue
this en banc opinion and judgment in their stead. See TEX. R. APP. P. 49.7.
 A jury convicted appellant Lajuan Cecile Bailey of failure to appear as

required for a pretrial hearing. See TEX. PENAL CODE ANN. § 38.10. It assessed

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

It was undisputed that Bailey failed to appear as required for a pretrial

hearing, and her trial strategy was to invoke the statutory defense available when

“the actor had a reasonable excuse” for her failure to appear in accordance with the

terms of her release. See id. § 38.10(c). She affirmatively 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

other purpose for cross-examining her attorney. That was a plausible trial strategy,

which entailed an implied waiver of the attorney–client privilege because it placed

in issue all of her communications with her lawyer about the need to actually

appear for hearings as required by the court.

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 hearing, she claims that her trial counsel divulged privileged

communications without authorization. To establish such a claim on direct appeal,

an affirmative demonstration of deficient attorney performance and resulting harm

must be firmly founded in the record. Although Bailey contends that she did not

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

2
examination of her former lawyer, the trial judge expressly found that such a

waiver in fact had occurred. That evidentiary ruling is supported by the record.

We hold that the trial court did not abuse its discretion to conclude that in

the course of presenting the statutory defense 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 selectively to only

those communications that were helpful to the defense. As a matter of law, the

waiver also extended to all other related attorney communications which were

relevant to the defense and thereby, in fairness, became admissible when Bailey

injected those communications into the case. Because Bailey does not argue and

the record does not reveal any other plausible strategy to defend the charge of

failure to appear, there also has been no demonstration of harm.

Bailey also contends that the trial court erred in overruling her motion for

mistrial based on the disclosure of her attorney–client communications. The trial

court acted within its discretion to deny the mistrial because the testimony of

which Bailey complains was introduced by her own attorney.

We affirm the judgment.

Background

Our review of an ineffective-assistance claim on direct appeal requires

evaluation of allegedly deficient performance in context of the totality of the

3
representation and in light of the entire record.1 To the extent this appeal implicates

the trial court’s evidentiary determination that a privilege was waived, we owe

“almost total deference” to an implied finding of any facts that would support the

ruling and would be supported by the record, especially when such findings are

based on an evaluation of credibility and demeanor.2

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

or possession of identifying information in Harris County.3 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, e.g., Okonkwo v. State, 398 S.W.3d 689, 693 (Tex. Crim. App. 2013)
(appellate review focuses on the objective reasonableness of counsel’s actual
conduct “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 particular circumstances of each case in evaluating
the effectiveness of counsel.”).
2
See, e.g., Johnson v. State, 414 S.W.3d 184, 192 (Tex. Crim. App. 2013);
Cameron v. State, 241 S.W.3d 15, 19 (Tex. Crim. App. 2007) (reviewing
trial court’s decision on the applicability of privilege as an evidentiary
ruling).
3
See Act of May 22, 2007, 80th Leg., R.S., ch. 631, § 1, sec. 32.51, 2007 Tex.
Gen. Laws 1204; Act of May 26, 2007, 80th Leg., R.S., ch. 1163, § 1, sec.
32.51, 2007 Tex. Gen. Laws 3991, 3992; Act of May 25, 2007, 80th Leg.,
R.S., ch. 1173, §§ 1–3, sec. 32.51, 2007 Tex. Gen. Laws 4012 (current
version at TEX. PENAL CODE § 32.51).

4
 A. Circumstances of failure to appear

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. A warrant had issued for

Bailey’s arrest on that charge, felon in possession of a firearm. See TEX. PENAL

CODE § 46.04(a).

Bailey was scheduled to appear for a separate hearing in Jefferson County

on September 15, 2010. She did not appear. Her Jefferson County bond was

forfeited, a capias was issued, and Roberts withdrew from representing her in that

case. On September 21, she did not attend the rescheduled pretrial conference in

Harris County. As a consequence, Roberts withdrew from representing her in the

Harris County case as well, and the State charged Bailey with the offense of failure

to appear.

B. Voir dire

While selecting the jury, defense counsel Jeffrey Sasser previewed Bailey’s

strategy of presenting a reasonable excuse for her failure to appear. Sasser stated:

5
“The law for bail jumping does allow a defense if someone had a reason, a

legitimate reason for not showing up.” He then asked the venire panel whether

there was “any reason” they could imagine “someone might not show up for

court,” eliciting responses that included “hospital,” “family emergency,” and

“incarcerated.” Sasser then asked: “What about if they didn’t know, would that be

a legitimate reason?” One venireperson responded “No,” prompting Sasser to

retort: “If they didn’t know they were supposed to come to court?” The transcript

indicates the panel responded “in unison”: “No.” This line of discussion then ended

after the trial judge sustained an objection from the State.

C. State’s motion to compel

At the beginning of trial testimony, the court held a hearing on the State’s

motion to compel the testimony of Bailey’s original defense attorney, Brian

Roberts, as a witness to testify “about information regarding resets and information

passed on by the defense attorney from the Court to his client for purposes of

showing up in court.” 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

6
v. State, 934 S.W.2d 672 (Tex. Crim. App. 1996). The trial court agreed, granted

the State’s motion to compel, and ordered Roberts to testify.

D. Evidence of Bailey’s failure to appear

The State called as witnesses Bailey’s bail 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 with the expectation that she

appear in court when required, she was obligated to appear in court on

September 21, and she did not appear. The bail bondsman testified that he had

spoken to Bailey on September 8, and that she told him “that there was a reset, an

off-docket reset.” The bondsman also made several subsequent attempts to

communicate with Bailey between September 8 and the next court date on

September 21, but these were unsuccessful because she had moved and changed

her phone number.4

4
The dissent makes special note of the bondsman Stim Bowie’s testimony,
characterizing it as demonstrating that he believed, as Bailey claimed to
believe, that “the September 8 revocation of her bond excused her from the
obligation to appear on September 21.” This mischaracterizes the testimony,
in which Bowie agreed only with defense counsel’s suggestion that after the
bond had been revoked, no other action was required of Bailey “in that
contract.” Bowie’s agreement that Bailey owed no further performance with
respect to her contract to obtain a bail bond is not tantamount to agreement
that Bailey also was excused from her obligation to the court to appear when
required.

7
 E. Evidence of Bailey’s knowledge of the Harris County court date

On the second day of testimony, the State called Roberts to the stand,

indicating that it intended to ask him 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 403.5 The State argued that the

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

court ruled that the Jefferson County case 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 a

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.

5
Bailey does not claim on appeal that the injection of extraneous offense
evidence constituted deficient performance by her trial counsel.
Accordingly, the 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 was violated.

8
 F. Cross-examination of former attorney

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.

That subject had not been part of the State’s direct examination, and the new line

of defense questioning prompted a renewed 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.

(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

9
 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.

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

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?

Defendant: Yes, one case.

The Court: All right. Anything further?

10
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 (sic) 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—

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.

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.

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.

Defendant: Just only that.

11
(Emphasis supplied.)

In response to questioning by the defense, Roberts confirmed that during the

time leading up to the September 21, 2010 Harris County court date, Bailey had an

“open warrant” stemming from the Brazoria County charge. Sasser probed the

extent to which Roberts informed Bailey of the seriousness of the warrant and the

need to present herself to authorities. He elicited testimony confirming that Roberts

prepared the motion to withdraw in advance of the hearing because he knew that

Bailey would not be coming to court, and explaining how he knew that.6 As Sasser

continued to probe the attorney-witness’s communications with his former client,

he reassured 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.” (Emphasis supplied.)

6
Under the pressures of a cross-examination that placed his professionalism
at issue, Roberts displayed 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 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 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.”

12
 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. 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 his office mate, 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 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 appear for court in Jefferson County. In response to Sasser’s questions, Roberts

revealed that he had expressly warned Bailey by email that her failure to appear in

Jefferson County would likely result in a felony “bond jumping charge” and also

“necessarily complicates your Harris County case.”

When another discussion of the privilege ensued, the trial court stated its

understanding 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.” When Bailey interjected that she “was very specific in saying that I wanted

13
to stick to the Brazoria County charge,” the trial judge reiterated that “the door has

been opened as to both charges” and that the privilege had been waived.

When trial resumed the next day, the parties continued to debate the

privilege issue in the context of defense motions for mistrial and, in the alternative,

to strike the testimony relating to the Jefferson County charges. Among other

responses, the State argued that Bailey’s privilege had been waived for several

reasons:

Number one, 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 [reasonable-
mistake] 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.7

The trial court denied the motion for mistrial and the motion to strike.

7
The dissent suggests that the State never argued implied waiver. But as
quoted above, the trial court initially excluded testimony about the Jefferson
County charge unless the defense “opened the door,” and the State did argue
at trial, in support of the trial court’s later waiver finding, that “it was
brought up by the defense as a contemplated part of their defense.” This
response did express, in general terms, the substance of the implied-waiver
argument. Moreover, we “may uphold a trial court’s ruling on any legal
theory or basis applicable to the case.” Martinez v. State, 91 S.W.3d 331,
336 (Tex. Crim. App. 2002); see also Winegarner v. State, 235 S.W.3d 787,
790 (Tex. Crim. App. 2007) (“as long as the trial court’s decision was within
the zone of reasonable disagreement and was correct under any theory of
law applicable to the case, it must be upheld”).

14
 Sasser then continued his cross-examination of Roberts. He immediately and

affirmatively elicited testimony that although Roberts had called, texted, and

emailed Bailey the day before her scheduled appearance admonishing her to appear

in Jefferson County, 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.

Later, during recross-examination, Sasser returned to the substance of the

communications about the Jefferson County case, and he asked Roberts to confirm

that Bailey understood that if she had appeared at the hearing in Beaumont, she

would have been taken into custody.

G. Bailey’s testimony

Once the State rested, the defense called Bailey to the stand. She 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 office mate, Lewis,

offered to defend her on the Brazoria County charge for $30,000. According to

Bailey, in addition to allowing Roberts to attend a funeral, the rescheduling of the

15
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.”

After reviewing the substance of these discussions with attorneys Roberts

and Lewis, defense counsel asked Bailey about her understanding of her general

status at that time with respect to her various pending criminal proceedings.

Bailey’s response specifically addressed the outstanding warrants for her arrest:

Q. (By Mr. Sasser) Okay. So, after you left your meeting, that last
meeting, the one that was right before the off-docket reset was
done, did you feel like if you got this money together that you
would be able to stay out of custody and fight your cases like
you had been out before?

A. Yes, I did.

Q. And why?

A. Because . . . once retained and everything, the plan was to do a
non-arrest bond in Brazoria County. That would have alleviated
any warrants, I wouldn’t have had warrants in any counties, and
I would have had a good reputable person from Brazoria
County to help me fight the charge that was brought against me.

Defense counsel also asked Bailey to explain her failure to appear in Jefferson

County:

Q. Why did you not go to Beaumont when you were supposed to
go? You said you had multiple reasons. You were talking about
your first reason.

A. Okay. The first reason I had is because of my bond being
revoked in Harris County. I wasn’t prepared for that. The
second reason was because when speaking with my attorney at
that time, when he—when Mr. Roberts said he sent me the

16
 e-mail, I didn’t even get the e-mail. I was under the impression
that our plan was to handle all of my cases at one time, and, you
know, I guess to have a plan for everything.

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 the “plan” arranged with her attorney 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 and was familiar with contracts.

Rather than relying on Bailey’s own lay understanding of the implications of

the revocation of bail to establish the reasonableness of her excuse, defense

counsel then sought to bolster the reasonableness of Bailey’s understanding of her

contract with the bonding company:

Q. (By Mr. Sasser) Well, what did you do when you found out it
was revoked? Did you try to get an understanding of this
agreement?

A. Yes, I did.

Q. Who did you try to get that understanding from?

A. From my attorney, Mr. Roberts, and from the bonding
company.

17
 H. Defense closing argument and judgment of conviction

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 obligation to attend

court on September 21. See TEX. PENAL CODE § 38.10(c). 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. He 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.

Sasser noted that Roberts had specifically warned Bailey to appear in

Jefferson County, but he had not warned her about Harris County. He emphasized

that in response to the charges pending against her in three different counties,

Bailey did “the one thing she knows to do, call her attorney, says: Hey what do we

do?” The thrust of this argument was that she 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:

We know he didn’t send her anything else to say: Hey, look you need
to come to Houston. You need to come to this court as well or else
this could happen. We know that because he said he did not e-mail her
anything.

....

18
 The defendant testified and said she had conversations with
Mr. Roberts. And, basically, it was, you know, if you can get this
money together, we can try to take care of your problems. And that’s
what she was trying to do.

....

. . . She was trying to get a solution. She was counting on her
attorneys at the time to help her out of—a helpless situation, really, at
the time; but in her mind, she was thinking, maybe I can still stay out.
I mean, as a defendant that’s what you think. I don’t want to be in jail.
And she’s thinking, if I can get this money together like my attorneys
told me, they can take care of all this stuff. By the way, my bondsmen
already told me my bond is revoked in the court. My attorneys already
told me my bond is revoked in the court. There’s no consequence. If I
don’t go to court, I’m just going to get my affairs in order, try to get
money together, get all cases consolidated, taken care of.

(Emphasis supplied.) Sasser thus argued that Bailey’s course of conduct had been

sanctioned by the attorneys she had retained to manage her legal problems,

emphasizing her 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 a notice of appeal and Sasser moved to withdraw.

Analysis

Bailey argues that she received ineffective assistance of counsel and that the

trial court erred by denying her motion for mistrial.

19
 I. Ineffective assistance of counsel

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

based upon a portion of Sasser’s cross-examination which elicited testimony about

attorney–client communications. The only examination alleged to be 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 rendered ineffective assistance by failing to explain the legal implications of

her express waiver of privilege, by opening the door to evidence about the

Jefferson County extraneous 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.

The constitutional right to counsel in a criminal prosecution exists to protect

the fundamental right to a fair trial. Strickland v. Washington, 466 U.S. 668, 684,

104 S. Ct. 2052, 2063 (1984). In this context, “a fair trial is one in which evidence

subject to adversarial testing is presented to an impartial tribunal for resolution of

issues defined in advance of the proceeding.” Id. at 685, 104 S. Ct. at 2063. “The

benchmark for judging any claim of ineffectiveness must be whether counsel’s

conduct so undermined the proper functioning of the adversarial 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 not mean errorless or perfect counsel whose competency of

20
representation is to be judged by hindsight.” Robertson v. State, 187 S.W.3d 475,

483 (Tex. Crim. App. 2006). Claims that a defendant received ineffective

assistance of counsel are governed by 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 “counsel” guaranteed by the Sixth Amendment; and if

so, (2) whether that deficient performance prejudiced the party’s defense.

Strickland, 466 U.S. at 687, 104 S. Ct. at 2064. “An appellate court looks to the

totality of the representation and the particular circumstances of each case in

evaluating the effectiveness of counsel.” Thompson v. State, 9 S.W.3d 808, 813

(Tex. Crim. App. 1999); see also Okonkwo v. State, 398 S.W.3d 689, 693 (Tex.

Crim. App. 2013) (appellate review focuses on the objective reasonableness of

counsel’s actual conduct “in light of the entire record”).

The adequacy of attorney performance is judged against what is reasonable

considering prevailing professional norms. Strickland, 466 U.S. at 688, 104 S. Ct.

at 2065. There is a strong 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; Nava v. State, 415 S.W.3d 289, 307–08

(Tex. Crim. App. 2013). 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 constitutionally adequate representation. Bone v. State, 77 S.W.3d 828,

21
836 (Tex. Crim. App. 2002). Limitations of the record often render a direct appeal

inadequate to raise a claim of ineffective assistance of counsel. See Goodspeed v.

State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005). “An 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, 9 S.W.3d at 813. That

necessary firm foundation is lacking in this direct appeal. As such, this is not the

“rare case in which the trial record will by itself be sufficient to demonstrate an

ineffective-assistance claim.” Nava, 415 S.W.3d at 308.

As applicable to this case, Rule 511(1) of the Rules of Evidence provided:

“A person upon whom these rules confer a privilege against disclosure waives the

privilege if . . . the person . . . voluntarily discloses or consents to disclosure of any

significant part of the privileged matter unless such disclosure itself is privileged.”

TEX. R. EVID. 511(1).8 The mere disclosure of privileged materials by a

defendant’s lawyer, by itself, does not give rise to a presumption of waiver.

Carmona v. State, 941 S.W.2d 949, 953 (Tex. Crim. App. 1997). Nevertheless,

8
Effective April 1, 2015, Rule 511 has been amended with the design of
aligning Texas law with federal law on waiver of privilege by voluntary
disclosure. Misc. Docket No. 14–9232 (Tex. Nov. 19, 2014); see also TEX.
R. EVID. 511 cmt. (2015). Rule 511(1) as quoted above remains as part of
the “General Rule” as stated in the new Rule 511(a).

22
“the totality of the circumstances and reasonable inferences therefrom may support

a finding of waiver.” Id. at 954; Wright v. State, 374 S.W.3d 564, 579 (Tex.

App.—Houston [14th Dist.] 2012, pet. ref’d).

Courts have recognized several circumstances in which the waiver of a

privilege is implied. Consistent with Rule 511’s acknowledgement that consent to

disclosure of “any significant part” of a privileged matter may constitute waiver of

the whole, a privilege may not be waived selectively to disclose only such

evidence as may be beneficial to the party holding the privilege.9 In this sense, a

9
See Rodriguez v. State, 94 S.W.2d 476, 479–80 (Tex. Crim. App. 1936)
(finding implied waiver of attorney–client privilege and admitting attorney’s
testimony about guilty plea, over objection, when appellant testified that
former guilty plea was made on attorney’s advice); Jones v. State, 181
S.W.3d 875, 878 (Tex. App.—Dallas 2006, pet. ref’d); Carmona v. State,
947 S.W.2d 661, 664 (Tex. App.—Austin 1997, no pet.); 1 MCCORMICK ON
EVIDENCE § 93 (7th ed. 2013) (“Waiver may be found . . . from conduct such
as partial disclosure which would make it unfair for the client to invoke the
privilege thereafter.”); cf. Wilkens v. State, 847 S.W.2d 547, 551 (Tex. Crim.
App. 1992) (Appellant’s Fifth Amendment rights were not violated when he
introduced part of psychiatric examination evidence to prove insanity
defense and State introduced testimony from examining psychiatrists to
rebut his presentation of defense); Draper v. State, 596 S.W.2d 855, 857
(Tex. Crim. App. [Panel Op.] 1980) (“Once having related part of the facts
of the transaction, a witness should not be permitted to assert a Fifth
Amendment privilege to prevent disclosure of additional relevant facts.”);
Stephens v. State, 59 S.W.3d 377, 380 (Tex. App.—Houston [1st Dist.]
2001, pet. ref’d); Aetna Cas. & Surety Co. v. Blackmon, 810 S.W.2d 438,
440–41 (Tex. App.—Corpus Christi 1991, orig. proceeding) (waiver found
when holder of privilege deliberately revealed privileged matter while
preparing an expert witness to testify).

23
privilege cannot be used simultaneously “as a shield and a sword”: after a partial

disclosure is used as a sword to gain litigation advantage, the privilege cannot then

be used to shield the remainder of the privileged communication.10 With specific

reference to the attorney–client communication privilege, it may be implicitly

waived by raising issues regarding the performance of counsel,11 particularly if an

issue is injected into the case which requires the attorney’s testimony. 12 And a

10
See In re Lott, 424 F.3d 446, 454 (6th Cir. 2005) (“litigants cannot hide
behind the privilege if they are relying upon privileged communications to
make their case”); Bittaker v. Woodford, 331 F.3d 715, 719 (9th Cir. 2003);
In re von Bulow, 828 F.2d 94, 103 (2d Cir. 1987); see also Clark v. United
States, 289 U.S. 1, 15, 53 S. Ct. 465, 469 (1933) (“The privilege takes flight
if the relation is abused.”); Republic Ins. Co. v. Davis, 856 S.W.2d 158, 163
(Tex. 1993) (“In an instance in which the privilege is being used as a sword
rather than a shield, the privilege may be waived.”).
11
See Lott, 424 F.3d at 452–53; Bittaker, 331 F.3d at 718–19 (citing Hunt v.
Blackburn, 128 U.S. 464, 9 S. Ct. 125 (1888)); see also U.S. Fire Ins. Co. v.
Asbestospray, Inc., 182 F.3d 201, 212 (3d Cir. 1999) (privilege waived when
party “has made the decision and taken the affirmative step in the litigation
to place the advice of the attorney in issue”) (quoting Rhone-Poulenc Rorer,
Inc. v. Home Indem. Co., 32 F.3d 851, 863 (3d Cir. 1994)); Garcia v. Zenith
Elecs. Corp., 58 F.3d 1171, 1175 n.1 (7th Cir. 1995) (noting that “the
attorney–client privilege is generally waived when the client asserts claims
or defenses that put his attorney’s advice at issue in the litigation”);
Developments in the Law–Privileged Communications, Implied Waiver, 98
HARV. L. REV. 1629, 1638 (1985) (“The privilege is held to be waived when
a client attacks the quality of his attorney’s advice . . . .”).
12
See Lott, 424 F.3d at 453 (citing Johnson v. Alabama, 256 F.3d 1156, 1178
(11th Cir. 2001). This particular means of implied waiver often arises
through allegations of ineffective assistance. See, e.g., Bittaker, 331 F.3d at
716–17; Tasby v. United States, 504 F.2d 332, 336 (8th Cir. 1974) (“When a

24
defense based on an assertion of good-faith reliance on the advice of counsel also

has been held to impliedly waive the attorney–client communication privilege.13

The touchstone of these various theories of implied waiver is that some litigation

conduct requires, in fairness, that the remainder of the privileged communication

be divulged.14 The scope of an implied waiver of privilege is a legal question to be

client calls into public question the competence of his attorney, the privilege
is waived.”); Youkers v. State, 400 S.W.3d 200, 212 (Tex. App.—Dallas
2013, pet. ref’d) (“Youkers necessarily placed in issue privileged
communications when he argued his attorney breached her legal duty to
provide effective assistance of counsel”).
13
See United States v. Bilzerian, 926 F.2d 1285, 1292 (2d Cir. 1991); see also
United States v. Workman, 138 F.3d 1261, 1263–64 (8th Cir. 1998);
Livingstone v. N. Belle Vernon Borough, 91 F.3d 515, 536–37 (3rd Cir.
1996); 1 MCCORMICK, supra, § 93 (“if a party interjects the ‘advice of
counsel’ as an essential element of a claim or defense, then that party waives
the privilege as to all advice received concerning the same subject matter”).
14
See, e.g., Bittaker, 331 F.3d at 719 (“courts and commentators have come to
identify this simple rule as the fairness principle”); Bilzerian, 926 F.2d at
1292 (“the privilege may implicitly be waived when defendant asserts a
claim that in fairness requires examination of protected communications”);
see also United States v. Miller, 600 F.2d 498, 501 (5th Cir. 1979) (“We
obviously cannot condone a practice that enables a defendant or any witness,
after giving the jury his version of a privileged communication, to prevent
the cross-examiner from utilizing the communication itself to get at the
truth.”). Consistent with this principle, the recent amendment to Texas Rule
of Evidence 511, effective April 1, 2015, provides that when a voluntary
disclosure covered by the attorney–client privilege is made in a state
proceeding, the waiver extends to undisclosed communications only if:

(A) the waiver is intentional;

25
determined under the rules of evidence,15 and thus it is not necessarily defined by

the client’s own articulation of the scope of privilege she intends to waive while at

the same time authorizing disclosure of privileged communications considered

helpful to her.

All of these considerations are implicated by this case. Bailey’s defense

theory was reasonable mistake. That theory was substantially predicated on her

reliance on the counsel she claimed she received from her attorney.16 In the course

(B) the disclosed and undisclosed communications or information
concern the same subject matter; and

(C) they ought in fairness be considered together.

TEX. R. EVID. 511(b)(1).
15
Cf. Granada Corp. v. Honorable First Court of Appeals, 844 S.W.2d 223,
225 (Tex. 1992) (orig. proceeding) (acknowledging trial court must
“interpret legal rules” in evaluating waiver of privilege).
16
The dissent suggests that “[p]rior to Sasser’s cross-examination of Roberts
during which confidential evidence related to the extraneous offense in
Jefferson County was disclosed, there was no evidence that appellant blamed
her mistaken belief on advice of counsel or that Roberts ever told her that
she did not need to appear at trial.” Such evidence would not be necessary
for the trial court to conclude that Bailey had waived privilege by consenting
to disclosure of a “significant part” of her attorney communications, see
TEX. R. EVID. 511, but regardless, a review of the entire trial record shows
otherwise. As early as voir dire, defense counsel previewed the reasonable-
mistake trial strategy by asking the venire panel whether there was “any
reason” they could imagine “someone might not show up for court.” Before
Roberts was called to the stand, Sasser cross-examined the court coordinator
about the procedures applied when a defendant fails to appear, and asked: “If

26
of examining her former lawyer to establish her legal defense, Bailey stated an

intention to limit the scope of her waiver of the privilege. Sasser sought to exploit

that attempted limitation through selective disclosure, eliciting Roberts’s testimony

only about communications expected to be helpful to the defense theory—a tactic

which was harshly critical of the witness’s professionalism. Through his questions

Sasser disclosed communications about the proposed Brazoria County

representation, using that testimony to portray the advice as tainted by the desire to

collect a fee. His questions also caused the disclosure of communications

concerning the need to actually appear for the Harris County hearing, which he

depicted as inadequate relative to the risk of not appearing, as well as confused by

the effect of the prior bond revocation. All this evidence was selectively elicited

the defense attorney were to come to you and say: Hey, look, I just forgot to
tell my client, my bad, my mistake, is that any type of problem?” In
response, the coordinator stated: “They need to address it with the Judge.”
Then before any testimony was elicited about attorney–client
communications relating to the Jefferson County charge, Sasser used his
cross-examination to suggest that Roberts failed to adequately advise Bailey
about the importance of appearing for the pretrial hearing and the potential
consequences of failing to appear. Accordingly, it is not the case, as
apparently suggested by the dissent, that the defense theory of reasonable
mistake due to reliance on counsel arose merely as an afterthought to
mitigate the damage after defense counsel deliberately elicited “confidential
evidence related to the extraneous offense in Jefferson County,” or that the
theory of reasonable mistake fortuitously sprang from the testimony of the
bail bondsman.

27
and offensively used in furtherance of the strategy of proving the reasonable-

mistake defense.

Bailey’s apparent desire to exclude evidence about the Jefferson County

communications constituted an assertion of the privilege as a shield against the use

of what turned out to be prejudicial information divulged as part of the broader

context of the representation: that Roberts actually had documented his significant

efforts to inform and advise her about the consequences of a failure to appear.

Those communications were interconnected with communications about the Harris

County case in both time and substance. Bailey failed to appear for a court date in

Harris County less than a week after she failed to appear in Jefferson County,

against Roberts’s strongly worded advice which expressly warned that a failure to

appear “necessarily complicates your Harris County case.” To affirmatively rely

upon suggested deficiencies in the evidence of communications about the need to

appear in Harris County while excluding the evidence about the need to appear in

Jefferson County would leave an unfair and misleading impression that Roberts

had not adequately advised Bailey about the serious implications of failing to

appear.

The decision to divulge a substantial part of her privileged communications

to establish a defense of reasonable mistake in this case—for which Bailey gave

express consent—was itself sufficient to waive privilege as to the additional related

28
and relevant interwoven communications. See TEX. R. EVID. 511. That waiver was

implied, and the proverbial door was opened, well before Sasser ever crossed the

boundary of express consent through the questions now alleged to constitute

deficient performance on his part. It was already implied by the time Sasser

elicited the communications about the failure to appear in Jefferson County.

A waiver of privilege is narrowly construed,17 and the reasonable-mistake

defense was not a blanket waiver of all attorney–client communications, including

ones unrelated to the mistake defense.18 But 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

17
“Implied waivers are consistently construed narrowly. Courts ‘must impose
a waiver no broader than needed to ensure the fairness of the proceedings
before it.” In re Lott, 424 F.3d at 453 (quoting Bittaker, 331 F.3d at 720).
This is because “[a] broad waiver rule would no doubt inhibit the kind of
frank attorney–client communications and vigorous investigation of all
possible defenses that the attorney–client and work product privileges are
designed to promote.” Bittaker, 331 F.3d at 722.
18
Cf. Marathon Oil Co. v. Moye, 893 S.W.2d 585, 590 (Tex. App.—Dallas
1994, no writ) (voluntary disclosure of significant part of privileged material
can result in implied waiver of privilege to other documents, though waiver
does not automatically allow disclosure of all privileged materials).

29
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 defense she necessarily consented to waiver of all the related and

interwoven communications, including those about the importance of appearing in

Jefferson County.

In response to this implied-waiver analysis, the dissent attempts to

distinguish this appeal from Carmona v. State,19 observing that in Carmona the

defendant’s selective disclosure of privileged polygraph results related to “the

defense of the same charged offense” (sexual assault and indecency with a child)

as did the incriminatory statements made before the polygraph exam, which the

defendant sought to protect from disclosure. Meanwhile in this appeal, the dissent

emphasizes that “Roberts represented appellant in two separate cases”—i.e.,

separate charges of fraudulent use or possession of identifying information filed in

Jefferson and Harris Counties—and “[d]iscussions that the two may have had

about one case would not be relevant and admissible as to the other.” The

distinction of two separate charges makes no difference in this appeal, in which the

communications on both of two charges had relevance to Bailey’s reasonable-

excuse defense to a separate third charge, arising from her later failure to appear in

court as required in Harris County. The attorney–client communications about the

19
947 S.W.2d at 664.

30
need to appear had no relevance and would not have been admissible on either of

the original Jefferson County and Harris County charges. Those communications

only gained relevance and became admissible when Bailey injected them into the

trial on a separate charge in her attempt to prove that she had a reasonable excuse

for failing to appear.

The trial judge ruled that Bailey had waived her privilege. The record

supports that ruling. Like other evidentiary rulings, a trial court’s 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.”20

Considering the totality of the circumstances and the reasonable inferences

therefrom, the trial court did not abuse its discretion in finding implied waiver. The

record does not provide a firm foundation to affirmatively establish that

confidential communications were elicited without Bailey’s actual consent, as the

20
Cameron, 241 S.W.3d at 19–20; Carmona, 947 S.W.2d at 664. Due to the
fact-specific nature of the inquiry, courts also have reviewed implied waiver
rulings in particular for abuse of discretion. See, e.g., Davis, 856 S.W.2d at
164 (reviewing trial court’s decision on waiver of attorney–client privilege
for abuse of discretion); In re Grand Jury Proceedings, 219 F.3d 175, 183
(2d Cir. 2000) (“Whether fairness requires disclosure has been decided by
the courts on a case-by-case basis, and depends primarily on the specific
context in which the privilege is asserted.”); but see United States v.
Mendelsohn, 896 F.2d 1183, 1188 (9th Cir. 1990) (reviewing de novo
court’s holding that privilege had been waived).

31
record is conflicted on that subject.21 Ordinarily, we may presume that an

appellant’s trial lawyer fully explained the possible consequences of eliciting

21
Bailey’s depiction of the record in this regard is materially incomplete in its
failure to acknowledge and address the totality of the circumstances and the
reasonable inferences therefrom, including aspects of the record that do
suggest an actual waiver of the privilege as found by the trial court, her
statements on the record notwithstanding. Our dissenting colleagues reach
the opposite conclusion by ignoring the implied-waiver doctrine and by
accepting Bailey’s and Sasser’s statements as the conclusive facts
concerning their communications. 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. 72178, 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.

32
evidence at trial.22 Thus, at this procedural stage and on this record, there is no

need to address whether it would have been constitutionally deficient performance

in this case for trial counsel to inadvertently effect an implied waiver of privilege

by a selective disclosure of privileged communications, when the record reflects

that the selective disclosure was expressly authorized by the client, but the record

is silent as to whether counsel actually and correctly advised his client about the

legal effect of the selective disclosure (other than counsel’s twice-repeated

assurance to the court that he had discussed the matter with the defendant).

Given the statutory defense of reasonable mistake and counsel’s evident

strategy in advocating for an acquittal on that basis, this appeal does not

conclusively establish that trial counsel’s questions about Jefferson County were so

outrageous that no reasonable attorney would have asked them. “[T]rial 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

22
See Robertson v. State, 187 S.W.3d 475, 484 (Tex. Crim. App. 2006) (citing
Strickland, 466 U.S. at 689, 104 S. Ct. 2052); see also Carmona, 947
S.W.2d at 664 (concluding based on evaluation of record that it was “not
irrational for the trial court to infer” that the client authorized a disclosure of
privileged communications, “hoping for favorable results”).

33
counsel’s active, ongoing representation of Bailey.23 Certainly the circumstances

here are not comparable to 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.24

Bailey also cannot demonstrate harm under the second prong of Strickland.

Despite Sasser’s statements to the effect of “falling on his sword,” after

unsuccessfully moving for a mistrial he subsequently made the strategic decision to

continue to elicit confidential communications from Roberts and to use them to

argue the reasonable-mistake defense. The record does not provide a firm

foundation for a claim that Bailey was harmed by this, considering that the

evidence was all but conclusive as to her guilt on the failure to appear charge, save

the possibility of persuading the jury she had a reasonable excuse.

23
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 v. State, 77 S.W.3d 828, 836 (Tex. Crim. App. 2002)
(“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.”).
24
See, e.g., Menefield v. State, 363 S.W.3d 591, 593 (Tex. Crim. App. 2012)
(failure to object to an infringement of the client’s right to confront
witnesses); Goodspeed v. State, 187 S.W.3d 390, 393–94 (Tex. Crim. App.
2005) (failure to ask questions on voir dire); Thompson, 9 S.W.3d at 814
(failing to continue objecting to significant hearsay).

34
 We overrule Bailey’s first issue alleging ineffective assistance of counsel.

II. Mistrial

In the alternative, Bailey contends 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.

In addition to our explanation, above, that the privilege already had been

waived before the line of questions that gave rise to the motion for mistrial, we

also note that the testimony of which Bailey now complains was introduced by her

own attorney. “[A] defendant may not complain of evidence elicited by [her] 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). Therefore, the trial court did not abuse its discretion in refusing to

grant a mistrial.

35
 Conclusion

We affirm the judgment of the trial court.

Michael Massengale
Justice

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

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

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

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

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

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

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

36