Bailey v. State

Decision Date23 July 2015
Docket NumberNO. 01–12–00200–CR,01–12–00200–CR
Citation469 S.W.3d 762
PartiesLajuan Cecile Bailey, Appellant v. The State of Texas, Appellee
CourtTexas Court of Appeals

Angela L. Cameron, Assistant Public Defender, Houston, TX, for Appellant.

Devon Anderson, District Attorney, Alan Curry, Donald W. Rogers, Jr., Assistant District Attorney, Houston, TX, for Appellee.

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

OPINION ON EN BANC RECONSIDERATION*

Michael Massengale, Justice

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-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 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.

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: “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 testily “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 testily 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, 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

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.

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,...

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