Bailey v. State, PD–1087–15

Decision Date14 December 2016
Docket NumberNO. PD–1087–15,PD–1087–15
Citation507 S.W.3d 740
Parties Lajuan Cecile BAILEY, Appellant v. The STATE of Texas
CourtTexas Court of Criminal Appeals

Angela L. Cameron, Harris County Public Defender's Office, Houston, TX, for Lajuan Cecile Bailey.

Alan Curry, Assistant District Attorney, Houston, TX, for The State of Texas.

OPINION

Johnson, J., delivered the opinion of the Court in which Keller, P.J., and Meyers, Keasler, Hervey, Richardson, Yeary, and Newell, JJ., joined.

A jury convicted appellant of felony failure to appear/bail jumping because she failed to appear as required for a pretrial court setting. The jury assessed punishment at ten years' imprisonment and a $10,000 fine. On appeal, appellant asserted ineffective assistance by her trial counsel because he violated the attorney-client privilege by questioning her prior trial counsel about confidential communications with appellant without appellant's consent. Appellant also alleged that the trial court abused its discretion in overruling her mistrial motion, which was based on a claim of ineffective assistance of counsel for that violation of appellant's attorney-client privilege. The First Court of Appeals overruled her claims and affirmed the judgment and sentence. Upon reconsideration of its original opinion, it withdrew that opinion and issued an en banc opinion, which also affirmed the trial court's judgment and sentence. Bailey v. State , 469 S.W.3d 762, 764–65, 780, n.* (Tex. App.–Houston [1st Dist.] 2015) (op. on rehearing) (en banc). We granted appellant's petition for discretionary review, which raised five grounds for review.

1) The attorney-client privilege belongs to the client and may not be waived without the client's consent. Appellant expressly waived attorney-client privilege but limited the waiver to one extraneous offense. Trial counsel questioned appellant's previous counsel regarding privileged communications concerning a second extraneous offense without appellant's consent.
2) Did the court of appeals err in determining trial counsel's disclosure was not ineffective assistance of counsel but instead an "implied waiver?"
3) Does implied waiver under the "offensive use" doctrine apply to the general defense of reasonable excuse provided for in Tex. Pen. Code § 38.10 ?
4) Can implied waiver under Tex. R. Evid. 511 trump appellant's expressed and specific limitation on the waiver of her attorney-client privilege?
5) Did the court of appeals improperly shift the burden to appellant to prove she did not waive her attorney-client privilege?

We find that the assertions made in ground one are encompassed by the other grounds. We therefore dismiss ground one as improvidently granted.

Facts

In 2009, appellant was charged with fraudulent use or possession of identifying information in both Harris County and Jefferson County. She posted a surety bond in both counties and hired Brian Roberts to represent her in both counties. The last reset request for the Harris County case was granted on September 2, 2010, when Roberts reset the hearing date from September 7 to September 21. He informed appellant of the change on or about September 2, and her knowledge of the new date was confirmed by her bondsman, who testified that appellant told the bondsman on September 8 about the change in the Harris County setting to September 21. On September 8, the Harris County court revoked appellant's bond because of a new charge against her in Brazoria County and the existence of an open warrant on that charge. Roberts testified that both appellant and the Harris County prosecutor notified him of the new charges on September 6.

Appellant did not appear for her scheduled appearance in Jefferson County on September 15 or for the Harris County setting on September 21. Both counties ordered the applicable surety bond forfeited, and Roberts withdrew from representation.

At trial, the state called Roberts as a witness. On direct examination, Roberts was asked questions about his representation of appellant only as to the Harris County case. Although the record reflects Roberts's discomfort at testifying against a former client and his concerns about the possibility of violating appellant's attorney-client privilege, he answered some of the questions after he was directed to answer by the trial judge. During cross-examination, appellant's counsel questioned Roberts about the Brazoria County charge, a topic not addressed by the state on direct examination, which prompted a renewed discussion of the privilege.

Outside the presence of the jury, appellant stated that she waived the attorney-client privilege with regard to her communications with Roberts when he had been representing her, but only with regard to the Brazoria case.1 To clarify, appellant stated, "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 responded, "That's the only thing. Nothing else. I understand." Appellant reiterated, "Just only that." 4 R.R. 41–42. As questions arose about Roberts's handwritten notes regarding his contact with appellant possibly being privileged, appellant said, "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." 4 R.R. 88.

Appellant repeatedly expressed her intent to waive the privilege only as to the pending weapons charge in Brazoria County case and now alleges that her trial counsel elicited testimony that caused the trial court to determine that he had opened the door to privileged communications outside the scope of appellant's clearly enunciated, narrow waiver of the privilege.

The Appeal

The court of appeals wrote,

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 v. State , 469 S.W.3d at 765.

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 testi[f]y "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 testi[f]y 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).2 The trial court agreed, granted the State's motion to compel, and ordered Roberts to testify.

Id. at 766–67.

Issues Raised In This Court

Appellant concedes that she did not appear on the scheduled court date and that, as part of her reasonable-explanation defense, she expressly waived the attorney-client privilege as to the pending charge in Brazoria County. Appellant contends that she was harmed by trial counsel's error because the testimony that was elicited about the charges in Harris and Jefferson Counties gutted her reasonable-excuse defense.

Appellant asserts that the court of appeals erred: 1) when it found that trial counsel was not ineffective for disclosing attorney-client privileged communications because she impliedly waived her privilege; and 2) by improperly shifting the burden of proof by requiring her to prove that her waiver was narrow and limited to a single charge instead of requiring the state to prove a broader waiver.

Appellant maintains that, because the privilege is rooted in the right to counsel, which is case specific, the waiver of the privilege is also case specific, and the court of appeals erred in finding that she impliedly waived attorney-client privilege regarding all conversations concerning court dates in all counties by her consent to waive attorney-client privilege as to a charge in one county. She alternatively argues that the communications regarding Jefferson County are not so interwoven with the Harris County case so as to render them relevant to that case.

Appellant also argues that the court of appeals erred in finding that she waived the privilege under the offensive-use doctrine. She urges us to follow the test that Texas Supreme Court set out in Republic Ins. Co. v. Davis , 856 S.W.2d 158 (Tex. 1993), which requires that the privilege holder be seeking affirmative relief before waiver may be found. She reasons that, because the reasonable-excuse defense is a general defense that merely holds the state to its burden of proof, the assertion of the defense does not seek affirmative relief and that the court of appeals erred in finding that she used the privilege as both a sword and a shield.

The state urges that the trial court did not err in finding that appellant had waived her attorney-client privilege with regard to the Jefferson County case and that the court of appeals did not err in upholding that ruling. The state also asserts that it was clearly the strategy of appellant herself, as well as her trial attorney, to have her prior trial counsel testify extensively as to the communications between the two. It contends that, in taking that approach, appella...

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  • Gonzalez v. State
    • United States
    • Texas Court of Criminal Appeals
    • November 4, 2020
    ...otherwise would allow defense counsel to use our jurisprudence in this area as both "a shield and a sword." Cf. Bailey v. State , 507 S.W.3d 740, 746 (Tex. Crim. App. 2016) (noting that a legal privilege may not be used simultaneously as a sword to gain a litigation advantage and then as a ......
  • Canada v. State
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    • Texas Court of Appeals
    • August 17, 2017
    ...[1st Dist.] 2015) (explaining that defendant may not challenge on appeal evidence elicited by his attorney at trial), aff'd , 507 S.W.3d 740 (Tex. Crim. App. 2016) ; see also Mumphrey v. State , 155 S.W.3d 651, 659 n.2 (Tex. App.—Texarkana 2005, pet. ref'd) (providing, with exceptions of me......
  • In re Cook
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    • Texas Court of Appeals
    • February 25, 2020
    ...privilege is personal to the client, and the right to waive the privilege belongs solely to the client. Bailey v. State , 507 S.W.3d 740, 745 (Tex. Crim. App. 2016) ; Carmona v. State , 941 S.W.2d 949, 953 (Tex. Crim. App. 1997). Cook also has right to assert the work-product privilege to p......
  • Johnson v. State
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    • August 1, 2019
    ...ex-wife waived in open court any claim of privilege that existed between her and Appellant's trial counsel. See Bailey v. State , 507 S.W.3d 740, 747 (Tex. Crim. App. 2016) (" [Texas Rule of Evidence] 511(1) specifies that a person on whom the rules confer a privilege against disclosure wai......
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6 books & journal articles
  • Trial Issues
    • United States
    • James Publishing Practical Law Books Archive Texas Criminal Lawyer's Handbook. Volume 2 - 2018 Contents
    • August 17, 2018
    ...that came to the knowledge of the lawyer or the lawyer’s representative by reason of the attorney-client relationship. Bailey v. State, 507 S.W.3d 740, 745 (Tex. Crim. App. 2016). The attorney-client privilege is an evidentiary privilege and protects against the compelled disclosure of conf......
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    • James Publishing Practical Law Books Texas Criminal Lawyer's Handbook. Volume 1-2 Volume 2
    • May 5, 2022
    ...that came to the knowledge of the lawyer or the lawyer’s representative by reason of the attorney-client relationship. Bailey v. State, 507 S.W.3d 740, 745 (Tex. Crim. App. 2016). The attorney-client privilege is an evidentiary privilege and protects against the compelled disclosure of conf......
  • Trial Issues
    • United States
    • James Publishing Practical Law Books Archive Texas Criminal Lawyer's Handbook. Volume 2 - 2019 Contents
    • August 16, 2019
    ...that came to the knowledge of the lawyer or the lawyer’s representative by reason of the attorney-client relationship. Bailey v. State, 507 S.W.3d 740, 745 (Tex. Crim. App. 2016). The attorney-client privilege is an evidentiary privilege and protects against the compelled disclosure of conf......
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    • United States
    • James Publishing Practical Law Books Archive Texas Criminal Lawyer's Handbook. Volume 2 - 2020 Contents
    • August 16, 2020
    ...that came to the knowledge of the lawyer or the lawyer’s representative by reason of the attorney-client relationship. Bailey v. State, 507 S.W.3d 740, 745 (Tex. Crim. App. 2016). The attorney-client privilege is an evidentiary privilege and protects against the compelled disclosure of conf......
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