Austin v. State

• Decision Date: 07 June 1995
• Docket Number: No. 09-94-039,09-94-039
• Citation: 899 S.W.2d 834
• Parties: Stephen Fuller AUSTIN, Appellant, v. The STATE of Texas, Appellee. CR.
• Court: Texas Court of Appeals

Page 834

899 S.W.2d 834

Stephen Fuller AUSTIN, Appellant, v. The STATE of Texas, Appellee.

No. 09-94-039 CR.

Court of Appeals of Texas Beaumont.

June 7, 1995.

Petitions for Discretionary Review Granted Sept. 13, 1995.

Christine R. Brown, Orange, for appellant.

John Kimbrough, Dist. Atty., Troy Johnson, Asst. Dist. Atty., Orange, for state.

Before WALKER, C.J., and BURGESS and STOVER, JJ.

OPINION

BURGESS, Justice.

A jury convicted Stephen Fuller Austin of bail jumping, found the two enhancement paragraphs to be true, and assessed punishment at fifty years' confinement in the Texas Department of Criminal Justice, Institutional Division. Appellant raises three points of error.

Point of error one challenges the sufficiency of the evidence to support the conviction. The application paragraph of the charge instructed the jury to convict appellant if it found beyond a reasonable doubt that on or about April 9, 1990, in Orange County, Texas, the defendant, after being lawfully released from custody on a pending felony charge of possession of a controlled substance (cocaine) on condition that he subsequently appear in court, intentionally and knowingly failed to appear in accordance with the terms of his release, to wit: the defendant failed to appear in the 260th District Court of Orange County, Texas, on April 9, 1990, for jury trial in Cause Number D890390. The court instructed the jury to acquit appellant if it found he had a reasonable excuse for his failure to appear in accordance with the terms of his release. The standard of review is whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the offense proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); Geesa v. State, 820 S.W.2d 154 (Tex.Crim.App.1991).

Appellant first argues the evidence does not establish appellant intentionally and knowingly failed to appear, then maintains the evidence established a reasonable explanation for his conduct. Dennis Powell testified he was appellant's lawyer in the narcotics case. He mailed appellant two trial notices. The letters were admitted into evidence. The first letter says the case was on standby for the following two week period. The second letter states jury trial is set for April 9, 1990. Powell had used the same address to communicate with appellant, and no letters were returned. He also spoke with appellant's mother about the April 9 setting.

Appellant's mother, Helen Dizadare, lived at the address appellant provided for correspondence. She denied Powell contacted her and claimed the letters never arrived. Appellant testified he attended the unsuccessful motion to suppress hearing on March 23, 1990. After the hearing Powell indicated the prosecution might go to trial and that he would contact them. They gave counsel Mrs. Dizadare's address and phone number. He did not know the trial began on April 9 because his mother never got the letters.

Appellant was finally apprehended while living in California under an assumed name. Appellant's explanation for assuming someone else's identity was that a police officer who worked for appellant's bondsman tried to kill him some time after the suppression hearing. Appellant worked as a "strong man" for Jimmy Beaumont; Beaumont was appellant's bondsman on the cocaine charge. According to appellant, a police officer tried to shoot him because Beaumont was afraid appellant would testify against Beaumont. Although Beaumont was incarcerated during the time appellant was a fugitive, appellant feared Beaumont's agents would find him. Appellant remained in Southeast Texas until early May. He thought the possession charge had been dismissed after his mother twice called the district attorney's office and they could not find the file. Appellant admitted his mother called him more than once while he was hiding in Texas. We hold the jury could rationally disbelieve appellant's version of the facts. Any rational trier of fact could have found every element of the offense proven beyond a reasonable doubt. Point of error one is overruled.

Point of error two maintains appellant did not receive effective assistance of counsel as required by U.S. CONST. amend. VI. To prevail on a claim of ineffective assistance of counsel, appellant must show that counsel's performance was deficient, to the extent that counsel failed to function as "counsel" guaranteed by the Sixth Amendment, and this deficient performance prejudiced his defense to the extent that there is a reasonable probability that but for counsel's unprofessional 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); Hernandez v. State, 726 S.W.2d 53 (Tex.Crim.App.1986). Appellant contends trial counsel's performance was deficient because he failed to object to the admission of evidence subject to the attorney-client privilege.

During the State's case-in-chief, the attorney who represented appellant on the possession charge testified about the contents of letters he mailed to his client and their conversations about the legal proceedings. A client has a privilege to refuse to disclose and to prevent the disclosure of confidential communications made for the purpose of facilitating the rendition of professional legal services. TEX.R.CRIM.EVID. 503(b). "A client has a privilege to prevent the lawyer ... from disclosing any other fact which came to the knowledge of the lawyer ... by reason of the attorney-client relationship." Id. A communication is "confidential" if not intended to be disclosed to third persons other than those to whom the disclosure is made in furtherance of the rendition of professional legal services to the client or those reasonably necessary to the transmission of the communication. TEX.R.CRIM.EVID. 503(a)(5). There is no privilege as to a communication relevant to an issue of breach of duty by the lawyer to his client or by the client to his lawyer. TEX.R.CRIM.EVID. 503(d)(3). The privilege is not a principle of constitutional dimension but is an exclusionary rule of evidence. Strong v. State, 773 S.W.2d 543, 547 (Tex.Crim.App.1989).

The State argues "a conversation consisting of a lawyer informing his client when his client's case is set for trial is not a confidential communication. The information by its very nature is public information...." This confuses the fact of communication with the underlying facts communicated. A number of civil cases recognize the subject matter of the communication is of no concern on determining whether a document is privileged and the...