NO. 07-03-0362-CR IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TE XAS

AT AMARILLO PANEL A FEBRUARY 8, 2006

______________________________ MICHAEL LEROY CAMERON, APPELLANT

V. THE STATE OF TEXAS, APPELLE E

_________________________________ FROM THE 9 TH DISTRICT COURT OF MONTGOMERY COUNTY; NO. 01-09 -05992-C R; HONORA BLE FRE D EDWAR DS, JUDG E

_______________________________ Before JOHNSON, C.J., and REAVIS and CAMPBELL, JJ.
MEMORANDUM OPINION ON REMAND FROM COURT OF CRIMINAL A PPEALS Following a plea of not guilty, appellant Michael Leroy Cameron was convicted of delivery of a controll ed substance by a jury. By our opinion of A ugust 16, 2004, we affirmed appellan t’ s conviction and sentence of 25 years. On appel lant’s petition for discreti onary

review, the Court of Criminal Appeals vacated thi s Court’s judgment and2

remanded the casefor recon siderati on of app ellant’ s first is sue of wh ether thetrial co urt erred b y refusin g to allo w his for mer attorn ey to test ify absen t a compl ete waiv er of th e attorney-clientprivilege. By his second issue, appe lla nt conte nded his trial counsel was ineffecti ve. After

further re view, weaffirm thetrial co urt’s judg ment.
Ron Pickering and Philip Cash we re working as undercover narcotics officers at the Handle Bar nightclub in Conroe o n the nig ht of Apri l 26, 200 2. Just b efore mid night, Pickering was approached by Stacy Warden, appellant’s co -defendant, who asked if he wanted to smoke some marihuana with her. Pickering declin ed, but asked if she kne w where he could buy some cocaine. Warden “said she could probably get it” for him, then placed a call on Pickering’s cell ph one. After concluding the phone call, Warden confirmed that“it[th e cocaine] would be there within 15 minutes.” When Pickering inquired about price, Wa rden advi sed him t hat the d rugs wou ld cost $ 120. Shortlybefore 2:00 a.m., a man later identified as appellant entered the nightclub, made eye contact with Warden, then walked out. Warden told Pickering that the drugs had arrived, then Pickering, Cash, and Warden went outside to the parking lo t. There, the officersobserved Warden standing by appellant next to a pickup truck. Warden took what Pickering “assumed was the cocaine”from appe llant, “p ut it in h er fist an d folded her arms and walked across th e parkin g lot” to him. She then opened her fist to reveal the cocaine. Pickering tookthe drugs from Warden and gave her the money, which she placed “in her hand and [then she] walked back with her hand s crossed like she did when s h e3

approached” him. Whe n Warden reached a ppellan t, she han ded him t h e money. Once the transacti on was co mplete, Wa rd en, Cash , P ickering, and appellant met at the truck, where Warden introduced appellant as Mike. Appellant asked Pickering “how he liked the blow,” the street name for powder cocaine. After Pickering “told him it was great,” appellant advised him that “ if [he] ne eded any thing mor

e that [he ] should contact [ Warden].”
Atsome point during the evening, Pickering obtained the licenseplate number of the truckby whic h he saw appella nt standi ng. L ate r that night, Pickering contacted his dispat cher

and “had the plate run” and discovered that the truck was regi stered to an individual who previously had been “handled” by the Montague County Sheriff’s Departmen t. From that information, Pickering developed the owner’sdate of b irth, hei ght, and weight, which he transmitted to the Department of Public Safety. After DPS provided Pickering with a driver’s license photo, hedetermined that the address on the license was the same as the address on the vehicle registration. Moreover, Pickering recognized the person depicted in the driver’s license photo as t he same individual with whom he ha d
come into contact at the nightclub. Having thus deve loped appellant as the suspect in a delivery of a controlled substance case, Pickering referred the case to the district attorney’s office. T he grand jury indi cted appe llant for that offe nse in S eptember of 2001.
With his first issue, appellant maintains the trial court erred in refusing to allow Jones, his former trial attorney, to testify absent a complete waiver of the attorney-client privilege. Specifically, appellant contends the testimony he sought to eli citfrom Jones was4

notprivileged because it had nothing to do with confidential information between appel lant and Jones. Rather, appellant main ta ins that Jones would have “provide[d] beneficial defense testimony based on inconsistenciesin the State’s file.” Thus, the trial court was wrong to conclude that such testimony would violate the attorney-client privilege and open the attorney to unqua lified c ross-exa mination by the S tate. By our original opinion, we hel d thatappellant’s general s tatement that he d id not “b elieve i t require s any typ e of waiver”
was insufficient to apprize the trial court of the basis of his specific objection, and that appellant

failed to inform the trial court in an effective and timel y mann er. Thus, his objection and entitlement to relief was not preserved for review. However, on remand, the issue presented is whether appellant, as the offering pa rty, was requ ired to tell the trial court not only that his opponent’s objection was not correct, but also why it was no t correct.
Since itis not enough to tell the trial court that evide nce is admissible, appellant was also requir ed to tell the court why the evidence was admissible. Reyna v. State, 168 S.W.3d 173, 177 (Tex.Cr.App. 2005). Before considering the applicable portions of the reporter’s record, we briefly review Rule 503 of the T exas Rules of Evidence, titled LawyerClient Privilege. Here, the proffered testimony did not implicate a confidential commun ication between appellant and his former attorney which would be covered u nder Rul e 503(b)(1) (A). Instead, it implicated the work product of appellant’s former attorney and is covered by Rule 503(b)(2), which is expressly designated as a special rule of privilege in5

criminal cases. These two rules were distinguished in Carmona v. State, 941 S.W.2d 949, 953 (Tex.Cr.App. 1997), where the Cour t of Cr iminal Appeals noted that, unlike the attorney-clientprivilege which is designed for the benefit of the client by guaranteeing the confidentially

of attorney-client communications, the work-product doctrine is designed for the benefit of the lawyer by protecting the lawyer from being compe lled to dis close the “fruits” of his labor. In Carmona, the Cour t conclud ed that a n obje ction based on the attorney-clientprivile ge does n ot put thetrial co urt or the othe r party on notice that the objection encompas ses the work-produ ct doctrin e. Id.
After appellant called his former attorne y as a witness, out of the presence of the jury, the record shows the following colloquy:
Defense: Your Honor, at this time Defense would call Guy Jone s to the

stand. Prosecuto r: Can we approach, Judge? Court: You may. (Bench co nference out of he aring of the jury). Prosecuto r: Since Guy Jones was the previous attorney of record, I would just like to know what the hec kwe’re doing. This is his previous attorney who filed motions. Court: What’s your point here? Defense: Guy tells me that when he initially looked at the offense r eport the first timehe looked at it, it was a handwritten report which is why I specifically asked Picker ing whythere was a handwritten report. He said he didn’t know. When I got

on the case, he told me that there was a ha ndwritt en report, and it gave a different color of the truc k that was – there was a6 handwritten report. Wh en he lo oked at th e offensereport a second ti me, it was

typewrit ten. Court: Take the jury out. ( Jury out). Court: All r ight. Now, let the record refle ct that you have called a

former attorney of record, Mr. Jones to the witness stand and your request is for what purpose? Defense: Your

Honor, it came to my attention whe n I was hired on this case that Mr. Jones when he first looked a t the offe nse repor t thatitwas a handwritten report; went back to look a t the repo rt a second time and it was a typewrit ten repor t. When he looked at it t he first time, it was a different colored truck given in the report as there was in the second report. Tha t would be the whole pu rpose of h is testim ony. Court: On the basis of his personal memory or his notes? Defense: On the basis of his, actually his notes. Court: Do you have your notes with you? Jones: They’re outside the courtr oom, Your

Honor. Court: And your client is willing to waive the attorney-clientprivilege,

I assume? Defense: Yes, You r Honor. Court: Well, that’s an interesting question. Prosecuto r: He’s got

to waiveit as to all aspe cts. Defense: Your Hon or, may I h ave a mome nt? Court: Exactly. I think that if he waives the attorney-client privile ge

you cannot pick and choose as to what yo u get to say asto whata reas you get to reveal. Once that attorney-client privilege crack has been opened, it’s a gate, an d th ey’re allowed to now –

becausehe‘s go ing to have to waive it on the record. I’ ll give you a min ute to tal k to him.7

Defense: I understand they’ll be allowed to go into any conversations as well. Court: You need t o talk to your clie nt about that and if he is going to

waive his attorney-client privilege then I want it on the record, especially

for the p rotection of Mr. J ones. W hat’s your decision? Defense: Your

Honor, I don’t be lieve th at it requ ires any type of waiver. He’s certainl y not goi ng to – at t his poin t he’s no t going to waive his attorney-client privilege. Court: Then I’m not g oing to l et Mr. Jone s te s tify. Mr. Jones cannot

geto n the stand and testi fy as to work produ ct in ord er to impeach testimony and yet not have a waive r of attorn ey. You can’thave it both ways. You e ither get it on or you waive it. Mr. Jones’ a ttorney-cl ient pri vileg e would go to the extent of even asking him did he represent him or anything else. He has to do it. I’m not going to put him in that positio n or thisCourt. Following this exchange, during an offer of proof Jones testified that when he reviewed the State’s file for the first time, it included a handwritten poli ce report designating the truck as white. Jones further a verred that the second time he reviewed the file, the han dwritten report had been replaced with a typewritten version thatdescribed the truck as dark blue. According to Jones, the two reports were otherwise identical

. According to the record, the trial judge and both attorneys focused their contentions and analysis on the attorney-client communication privilege , but the work- prod uct privilege
was not addressed by either attorney or the judge

. Significantly, appellant did not contend the evidence was admissible un de r the special provision covering attorney work-product privilege or inform the court that the attorney- client p rivilege was not applica ble. Moreover,1 With this issue, appellant complains that the objectionable testimony washearsay. In the body

of his a rgument, however, he asserts that it was also objectionable on relevance ground s. See Tex. R. Evid. 40 3. 8 regarding the waiver of his privileg e, appella nt’s fina l stateme nt was th at he dec lined to waive his priv ilege. Based on this record and following Reyna , 168 S.W.3d at 177, we hold the alleged error was not preserved for review. Appel lant’s first issue is overruled. Byhis second issue, appellant asserts his “[t]rial counsel was in effectiv e in failing to properly object to hearsay evidence that [he] had gun s, and that Stacy Warden was afraid that[he] ‘would pull one on her.’” 1 We disagree. In determining whether counsel's representation was so inadequate as to violate a defenda nt's S ixth Ame ndment ri ght to
c ounsel, Texas courts adhere to the two-pronged test enunciated in Stricklan d v

. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed .2d 6 74 (1984) ; see Hernandez v. State, 726 S.W.2d 53, 57 (Tex.Cr.App. 1986). Appellan t must first prove t hat cou nsel's performa nce was de ficient, i.e ., that his assistance fell below an objective standard of reasonableness. See McFarland v. State, 928 S.W.2d 482, 500 (Tex.Cr.App. 19 9 6). If appellant

demonstrates deficient assistance of counsel, he must then affirmatively prove prejudice as a result of the deficient assistan ce. Id . In proving prejudice, appellant must d emonstrate

a reasonable probability that but for counsel's e rrors, the result of th e proceeding would have been different. Mitchell v. State, 68 S.W.3d 640, 642 (Tex.Cr.App. 2002). A reaso nable pr obabili ty is a pr

obabili ty suffici ent to undermine confidence in the outcome. Hernandez , 726 S.W.2 d at 55. In other words, appellant must demonstrate that9

the deficie nt perform ance prej udiced h is defen se. Mitchell , 68 S.W.3d at 642. Failure to make the required showing of either deficient performance or sufficient prejudice defeats the ineffectiveness claim. Garcia v. State, 887 S.W.2d 862, 880 (Tex .Cr.App. 1994), cert. denied , 51 4 U.S. 1021, 115 S.Ct. 1368, 131 L.Ed.2d 223 (199 5). The burden is on appellant

to prove by a preponderance of the evidence that counsel was ineffective. McFarland , 928 S.W.2d at 500.
The adequacy o f defense counsel's assistance is based upon the totality of the representation rather than by isolated acts or omissionsof trial counsel. Id . Furthermore, appella te review of trial counsel's representation is highl y deferential and presu mes that counsel's conduct fell within the wide rangeof reasonable and professional representation. Bone v. State, 77S.W.3d 82 8, 833 (T ex.Cr.Ap p. 2002). Although the constitutional right to counsel ensures the right to reasonably effective counsel , it does not guarantee errorless counsel, wh ose compe te ncy or ac curacy of represen tation is

to be jud ged by hi ndsight. Exparte Kunkle, 852 S.W.2d 499, 505 (Tex.Cr.App. 1993). Finally, any a llegati on of ineffectiveness must be f irmly found ed in the record, and the record must affirmatively demonstra te the alle g ed ineffectiveness. Thompson v. State, 9 S.W.3d 808, 813 (Tex.Cr.A pp. 1999 ).
The basis of appellant’s argument under this issue stems from the testimony of Shelley Cummings, Warden’s roommate, who test ified for the defe nse. Cummings, who
was also at

the nightclub on the night of the offense, testified on directexamination that she10

did not like appellant “[b]ecause of the way [she] felt hewas treating Stacy and the things thatwere going on between them.” Acc ordi ng to Cummings, she attempted to prevent Warden from leaving the nightclub with appellant. By this iss ue, appellant specifically claims his counsel was ineffective for failing to properly object to the following testimony:
State: Okay. Now, you stated initiall y when you were asked by

defense counsel how you knew the Defendant and you stated thathe was a friend of yours. Okay. Then you stated later that you don’t like him and he’s not a friend of yours. Cummings: When I first met him, yes, we got along and wew ere friends,

but as I g ot to know

him, no, I did not

like hi m. State: Why didn ’t you li ke him? Cummings: Beca use of th e way I felt he was treating Stacy [Warden] and the

things th at were g oing on between them. State: What was that? Defense: Your Honor, I’m going to object to relevance. Court: What’s the relevance? State: Judge, I believe her line of testimony is she’s not letting her leave, and he [the defense attorney] was trying to explore why she di dn’t wa n t her to leave. I’m just trying to explore that at this time. Court: All righ t. I’ll l et you go into it b riefly. State: Let me ask you the q uestion. Do you remember -
- Cummings: Because from what Stacy [Warden] had talked to me and the times I

talked to her on the phon e, she wa s scare d o f him, and she was my best friend, and I didn’t want her in jeopardy. State: Why was s he afraid of him?11

Cummings: I’m not real sure. Sh e never s aid. I know theyfought a lot. She

made comments about he had guns, and she was afraid he would pull one on her. I don’t know that he ever did, but she was scar ed of him

. Defense: Your

Honor, I’ m going to object at this poi nt. I thin k we’regetting into this line. Court: You need to move on. State: So she’s your close friend and your roommate, and you understand

thatshe was afraid of the Defendant, but she hasn’t f ully ex plained to you why o r just thin gs she’sshared -- Defense: Your

Honor, I’m going to object, asked and answered and relevance. Court: It’s a summation question. Move on. Initially, we acknowledge our authority to address an i nef fective assistance of counsel claim on direct appeal where the record is sufficie nt to prove that counsel’s performance was defi cient. See Robinson v. State, 16 S.W.3d 808, 813 n.7 (Tex.Cr.App. 2000). Notwi thstanding appellant’s argument to the contrary, however, this record does notpresent one of those rare case s allowi ng us to do so. As in the majority of instances, the record her e is simply undeveloped and cannot ade quately reflect the failings of trial
couns el, if any. Thompson , 9 S.W.3d at 813-14. Furthermore, the portion of the recor d reproduced above suggests that appellant’s attorney was, in fact, ale rt and responsi ve to the prosecutor’s line of questioning. Indeed, he objected either to the State’s question or Cummings’s response no less than three tim es in the sp ace of one and a half pages of reporter’s record. In any event, on this record we are no t in a position to fairly evaluate appellant’s claim and decline his invitation to do so. Appellant’s second issue is overruled.12

Accordingly, the judgment of the trial court is affirmed.

Don H. Reavis Justice Johnson, C.J., not participating. Do not publish.