concurring.
I agree with the majority’s opinion that the Court of Appeals erred in concluding the communications between appellant and his attorney were confidential, but write sepa*676rately to clarify why the communications were not of a confidential nature.
During the State’s ease-in-chief on the bail jumping charge, the attorney who represented appellant on the original charge testified about the contents of two letters he mailed to appellant. The letters were admitted into evidence without objection. The attorney’s testimony revealed that the first letter indicated appellant’s case was on standby for the following two week period, while the second letter stated a jury trial was set for April 9, 1990. In determining whether this evidence about the trial setting was privileged, the Court of Appeals relied upon the statutory attorney-client evidentiary privilege found in Tex.R.Crim. Evid. 503(b):
A client has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications made for the purpose of facilitating the rendition of professional legal services to the client and made: (1) between him ... and his lawyer....
Austin, 899 S.W.2d at 837. In order to claim the privilege, the communication between the attorney and client must be of a confidential nature. “A communication is ‘confidential’ if not intended to be disclosed to third persons _” Tex.R.Crim. Evid. 503(a)(5). The State argued that the communications here were not confidential because the information regarding the trial setting was public information. The court responded by stating that the State was confusing “the fact of communication with the underlying facts communicated.” Id. Citing a number of court of appeals cases, the Court of Appeals noted that “the subject matter of the communication is of no concern on determining whether a document is privileged.” Id. The probative value of the attorney’s testimony on the bail jumping charge was not the date of the trial setting but the fact that he informed appellant that the case was set for trial.1 Id. at 838.
The Court of Appeals then stated that Rule 503 defines confidentiality in terms of intent rather than content and that a communication is privileged if it was intended to be confidential at the time it was made. Id. at 838. The appellate court acknowledged that there was no direct evidence that the attorney intended his communications to appellant about the trial setting be confidential. Id. Nonetheless, focusing on the fact that the letters were sent to appellant personally and that correspondence is by its very nature private, the court concluded that the communications between the attorney and appellant were intended to be confidential. Id. Thus, the Court of Appeals held the evidence was subject to the attorney-client privilege. Id.
The Court of Appeals erred in stating that the subject matter of the communication between an attorney and his client is unimportant in determining whether a communication is privileged. In Manning v. State, a Court of Appeals opinion that this Court adopted as its own, the appellate court quoted language from a federal circuit court case which stated “[i]t is the substance of the communications which is protected, however, not the fact that there have been communications.” Manning v. State, 766 S.W.2d 551, 557 (Tex.App. — Dallas 1989), aff'd per curiam, 773 S.W.2d 568, 569 (Tex.Crim.App.1989). The plain language of Rule 503(b) provides that only confidential communications made for the furtherance of professional legal services are considered privileged. See Boykin v. State, 818 S.W.2d 782, 785 (Tex.Crim.App.1991) (absent absurd result or ambiguity, plain language of statute controls interpretation). To state that the subject matter of a communication is irrelevant in determining whether a communication is privileged under Rule 503(b) would make the privilege available to any type of confidential communication between an attorney and his client. Although the attorney-client relationship here provided the occasion for the attorney’s communications, the relationship alone did not give rise to the privilege.
The Court of Appeals held that the attorney’s communications to appellant were privileged under Rule 503(b) because the attorney intended his communications to appellant *677to be confidential. Although it recognized that there was no direct evidence of intent, the court determined the communications were confidential because they were addressed to appellant personally and because correspondence is by its nature private. The court erred in its analysis regarding the attorney’s intent.
The burden of proof to establish the existence of a privilege rests on the one asserting it. Jordan v. Fourth Court of Appeals, 701 S.W.2d 644, 648 (Tex.1985) (orig. proceeding); Peeples v. Fourth Supreme Judicial District, 701 S.W.2d 635, 637 (Tex.1985) (orig.proceeding); Giffin v. The Honorable R.L. Smith, 688 S.W.2d 112, 114 (Tex.1985) (ornig. proceeding); Cameron County v. Hinojosa, 760 S.W.2d 742, 743 (Tex.App. — Corpus Christi 1988, orig. proceeding); see also Hayes v. Pennock, 192 S.W.2d 169, 173-74 (Tex.Civ.App. — Beaumont 1945, writ refd n.r.e.) (stating “[u]nless it is clear that secrecy was desired the reason for the privilege ceases”). Appellee has not met his burden. The circumstances surrounding the communications reflect that the attorney did not intend his communications to appellant regarding the trial setting be confidential. At no time did the attorney refuse to testify or assert the attorney-client privilege with respect to his communications to appellant on that topic. The attorney also testified that he told appellant’s mother about the trial setting. Rule 503(a)(5) specifically states that a “confidential” communication is one not intended to be disclosed to third parties. This evidence is much more indicative of the attorney’s intent that his communications about the trial date not be confidential than ■the fact that the correspondence, which by nature is confidential, was sent to appellant personally. Even if appellant’s trial counsel had objected to introduction of the evidence about the trial setting on the ground that it was subject to the attorney-client privilege, the objection would have been overruled because the evidence was not privileged. Ap-pellee has not satisfied the Strickland standard for ineffective assistance of counsel, ie., that counsel’s performance was deficient and that but for counsel’s errors, the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).
As the majority notes, other jurisdictions addressing this same issue have uniformly held that communications between an attorney and his client regarding a trial setting are not confidential. United States v. Freeman, 519 F.2d 67, 68-69 (9th Cir.1975); United States v. Bourassa, 411 F.2d 69, 74 (10th Cir.1969), cert. denied, 396 U.S. 915, 90 S.Ct. 235, 24 L.Ed.2d 192 (1969); United States v. Hall, 346 F.2d 875, 882 (2nd Cir.1965), cert. denied, 382 U.S. 910, 86 S.Ct. 250, 15 L.Ed.2d 161 (1965); United States v. Woodruff, 383 F.Supp. 696, 697 (E.D.Pa.1974). These cases rely on the following basic elements that are required to establish a claim of attorney-client privilege:
(1) the holder of the privilege is or sought to become a client; (2) the person to whom the communication was made (a) is a member of a bar of a court, or his subordinate and (b) in connection with this communication is acting as a lawyer; (3) the communication relates to a fact of which the attorney was informed (a) by his client (b) without the presence of strangers (c) for the purpose of securing primarily either (i) an opinion on law or (ii) legal services or (iii) assistance in some legal proceeding, and not (d) for the purpose of committing a crime or tort; and (4) the privilege has been (a) claimed and (b) not waived by the ehent.
United States v. United Shoe Machinery Corp., 89 F.Supp. 357, 358-59 (D.Mass.1950). These courts hold that “[t]he relaying of this message is not in the nature of a confidential communication,” reasoning that “[djefense counsel served merely as a conduit for transmission of a message_ Defendant’s counsel had a duty to relay the instructions to his client in his capacity as an officer of the court, and this in no way was inconsistent with his obligation to his client.” Hall, 346 F.2d at 882. Notification of a trial setting is not “for the purpose of facilitating the rendition of professional legal services.... The lawyer is acting merely as an agent for the court in communicating the court date to the client.” State v. Ogle, 297 Or. 84, 682 P.2d 267, 269 (1984). Furthermore, the attorney’s *678testimony “of the fact that he or she performed this function is not privileged.” Id.) State v. Breazeale, 11 Kan.App.2d 103, 713 P.2d 973, 975 (1986); see also United States v. Kendrick, 331 F.2d 110, 113-14 (4th Cir.1964).
I find this caselaw, none of which is cited by either party or the Court of Appeals, provides guidance on the issue before us. The trial attorney’s role was that of a “conduit,” relaying a message to his client, appellant, informing him of the date his case was set for trial. At no time did he indicate that this communication was intended to be confidential.
An attorney’s communication to his client of a trial setting is not a confidential communication, and therefore not subject to the attorney-client privilege. Appellee’s lawyer’s failure to object to testimony on this issue did not render his assistance ineffective. With these comments I join the opinion of the Court.
. In the prosecution for bail jumping, the State was required to prove that appellant had knowledge of the trial setting and that he intentionally failed to appear for his jury trial. Tex. Penal Code Ann. § 38.11(a) (current version at Tex. Penal Code Ann. § 38.10(a)).