Opinion on en banc reconsideration issued July 23, 2015

In The

Court of Appeals 

For The 

First District of Texas 

————————————

NO. 01-12-00200-CR

———————————

LAJUAN CECILE BAILEY, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 174th District Court

Harris County, Texas

Trial Court Case No. 1298261

OPINION ON EN BANC RECONSIDERATION*

 

* We grant appellant’s motion for en banc reconsideration, withdraw our 

opinion of October 7, 2014, vacate our judgment of the same date, and issue 

this en banc opinion and judgment in their stead. See TEX. R. APP. P. 49.7.
2

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-
3

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 
4

representation and in light of the entire record.1To 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.

 

1

See, e.g., Okonkwo v. State, 398 S.W.3d 689, 693 (Tex. Crim. App. 2013) 

(appellate review focuses on the objective reasonableness of counsel’s actual 

conduct “in light of the entire record”); Thompson v. State, 9 S.W.3d 808, 

813 (Tex. Crim. App. 1999) (“An appellate court looks to the totality of the 

representation and the particular circumstances of each case in evaluating 

the effectiveness of counsel.”).

2

See, e.g., Johnson v. State, 414 S.W.3d 184, 192 (Tex. Crim. App. 2013);

Cameron v. State, 241 S.W.3d 15, 19 (Tex. Crim. App. 2007) (reviewing 

trial court’s decision on the applicability of privilege as an evidentiary 

ruling).

3

See Act of May 22, 2007, 80th Leg., R.S., ch. 631, § 1, sec. 32.51, 2007 Tex. 

Gen. Laws 1204; Act of May 26, 2007, 80th Leg., R.S., ch. 1163, § 1, sec. 

32.51, 2007 Tex. Gen. Laws 3991, 3992; Act of May 25, 2007, 80th Leg., 

R.S., ch. 1173, §§ 1–3, sec. 32.51, 2007 Tex. Gen. Laws 4012 (current 

version at TEX. PENAL CODE § 32.51).
5

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: 
6

“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 testify “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 testify 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 
7

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

 

4 The dissent makes special note of the bondsman Stim Bowie’s testimony, 

characterizing it as demonstrating that he believed, as Bailey claimed to 

believe, that “the September 8 revocation of her bond excused her from the 

obligation to appear on September 21.” This mischaracterizes the testimony, 

in which Bowie agreed only with defense counsel’s suggestion that after the 

bond had been revoked, no other action was required of Bailey “in that 

contract.” Bowie’s agreement that Bailey owed no further performance with 

respect to her contract to obtain a bail bond is not tantamount to agreement 

that Bailey also was excused from her obligation to the court to appear when 

required.
8

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 403.5The 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. 

 

5 Bailey does not claim on appeal that the injection of extraneous offense 

evidence constituted deficient performance by her trial counsel.

Accordingly, the dissent’s repeated references to the disclosure of an 

extraneous offense miss the mark—they have nothing to do with Bailey’s 

contention on appeal that her privilege was violated. 
9

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, the prosecutor then stated: “I think for 

Mr. Roberts’s protection, he’s worried about going into this and he needs to hear 

that from the client outside the presence of the jury so that Mr. Roberts is 

comfortable that she is allowing him to answer the questions.” The judge then 

excused the jury from the courtroom, and the discussion continued in Bailey’s 

presence:

Sasser: Judge, at this time I anticipate asking Mr. Roberts

about communications that he had with my client 
10

regarding the warrants that came up from Brazoria 

County. Not from Jefferson County, not from 

Beaumont. We already talked about this earlier, but 

the fact, you know, [the prosecutor] had come in here 

and gotten the bond revoked, she had these new cases 

in Brazoria County, I basically want to talk about the 

conversations he might have had with her about that 

and the fact—

The Court: You discussed these with your client?

Sasser: Yes, sir, I have.

The Court: Alright. I will allow you to.

Sasser: For my protection, may I get something on the record 

from my client? 

The Court: Any objection?

Prosecutor: No, Judge. I think for Mr. Roberts, he needs to hear it 

out of Ms. Bailey’s mouth that she’s waiving the 

privilege between her and the attorney.

Sasser: You just heard what I discussed with the judge.

Defendant: Only on one case. That’s the only case that was 

because I had no other charges. There was only one 

case filed.

Sasser: Are you waiving the attorney–client privilege by your 

prior attorney, Mr. Roberts, for me to question him 

regarding communications that you may have had 

with him around September 2nd, 2010 regarding your 

outstanding cases, the Brazoria cases? 

Defendant: Yes, one case.

The Court: All right. Anything further? 
11

Prosecutor: Not unless Mr. Roberts has questions of his prior 

client or has concerns. 

Sasser: I think it’s clear she waived the privilege at this point. 

I’m offering Mr. Roberts the opportunity if he doesn’t 

feel uncomfortable (sic) or doesn’t need to make 

inquiries so we don’t have to take the jury back out. 

Mr. Roberts, do you think that’s adequate for the 

attorney–client privilege for you to answer the 

questions unencumbered by attorney–client privilege 

you used to have with Ms. Bailey? 

Roberts: I didn’t quite hear what it is she’s waiving. I don’t feel 

comfortable testifying to anything unless I hear 

directly from her the particular privileged 

conversations that she’s waiving her privilege to. Are 

you waiving privilege—

Defendant: 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: Correct. 

Defendant: There’s only one thing that changed during the whole 

time I was on bond, that is the only thing that I’m 

talking about and referencing, not everything 

subsequent or after the fact. 

Sasser: She had a gun case, the initial case filed in Brazoria 

County, felony possession of a gun. That was the 

warrant [the prosecutor] came in and showed you. I 

would assume. I wasn’t here, Judge. She picked up 

this new case in Brazoria and you revoked her bond. 

Roberts: That’s the only thing. Nothing else. I understand. 

Defendant: Just only that. 
12

(Emphasis supplied.)

In response to questioning by the defense, Roberts confirmed that during the 

time leading up to the September 21, 2010 Harris County court date, Bailey had an 

“open warrant” stemming from the Brazoria County charge. Sasser probed the 

extent to which Roberts informed Bailey of the seriousness of the warrant and the 

need to present herself to authorities. He elicited testimony confirming that Roberts 

prepared the motion to withdraw in advance of the hearing because he knew that 

Bailey would not be coming to court, and explaining how he knew that.6 As Sasser 

continued to probe the attorney-witness’s communications with his former client, 

he reassured him: “We’ll get through this. It’s all out right now. The jury is going 

to hear about everything. Don’t worry about the attorney–client. Everything has 

been waived at this point.” (Emphasis supplied.)

 

6 Under the pressures of a cross-examination that placed his professionalism 

at issue, Roberts displayed an admirable sensitivity to respecting his former 

client’s privilege. When the questioning about his client communications 

first veered away from the Brazoria County charges, it was Roberts who 

provoked a careful consideration of how the cross-examination was 

unfolding. When asked how he knew that Bailey would not be coming to 

court for a hearing in Harris County (such that it was recited in the written 

motion he had brought with him to court on the date of the hearing as a 

reason supporting his request to withdraw), Roberts suggested that counsel 

“might want to approach” the bench. The ensuing bench conference yielded 

no clarity with respect to the privilege, and Bailey’s trial counsel asked the 

question again, specifically instructing the witness: “You can answer that.” 

Roberts sought guidance from the trial judge, who stated: “You may.”
13

The exchange between defense attorney and former-attorney witness

apparently became heated when Sasser asked questions suggesting that Roberts, 

along with his office mate Lewis, had been demanding higher fees of Bailey in the 

wake of the Brazoria County charges. Roberts denied attempting to charge Bailey 

more for the cases he had been retained to handle in Jefferson and Harris Counties, 

and he also explained that his office mate, Lewis, did offer to defend her against 

the fresh charges in Brazoria County for an additional fee.

Sasser eventually asked Roberts whether he warned Bailey that she would be 

“making a huge mistake” by not appearing and forsaking the opportunity for plea 

bargains he had been negotiating. Roberts replied that on September 14 he had 

emailed, texted, and called Bailey to advise her of what would happen if she did 

not appear for court in Jefferson County. In response to Sasser’s questions, Roberts 

revealed that he had expressly warned Bailey by email that her failure to appear in 

Jefferson County would likely result in a felony “bond jumping charge” and also 

“necessarily complicates your Harris County case.”

When another discussion of the privilege ensued, the trial court stated its 

understanding that “we have opened the door, we have come into both the 

Jefferson County charges and the Brazoria County charges, along with the charge 

here.” When Bailey interjected that she “was very specific in saying that I wanted 
14

to stick to the Brazoria County charge,” the trial judge reiterated that “the door has 

been opened as to both charges” and that the privilege had been waived.

When trial resumed the next day, the parties continued to debate the 

privilege issue in the context of defense motions for mistrial and, in the alternative, 

to strike the testimony relating to the Jefferson County charges. Among other 

responses, the State argued that Bailey’s privilege had been waived for several 

reasons:

Number one, they were accusing Mr. Roberts of something, therefore, 

the privilege disappears so he can defend himself. Number two, it was 

brought up by the defense as a contemplated part of their [reasonablemistake] defense. Number three, the defendant did not assert her 

privilege after hearing her lawyer say: The privilege is waived, go 

ahead and answer the question. And she very easily could have done 

that over the long period of time at some point, Judge.7

The trial court denied the motion for mistrial and the motion to strike.

 

7 The dissent suggests that the State never argued implied waiver. But as 

quoted above, the trial court initially excluded testimony about the Jefferson 

County charge unless the defense “opened the door,” and the State did argue 

at trial, in support of the trial court’s later waiver finding, that “it was 

brought up by the defense as a contemplated part of their defense.” This 

response did express, in general terms, the substance of the implied-waiver 

argument. Moreover, we “may uphold a trial court’s ruling on any legal 

theory or basis applicable to the case.” Martinez v. State, 91 S.W.3d 331, 

336 (Tex. Crim. App. 2002); see also Winegarner v. State, 235 S.W.3d 787, 

790 (Tex. Crim. App. 2007) (“as long as the trial court’s decision was within 

the zone of reasonable disagreement and was correct under any theory of 

law applicable to the case, it must be upheld”). 
15

Sasser then continued his cross-examination of Roberts. He immediately and 

affirmatively elicited testimony that although Roberts had called, texted, and 

emailed Bailey the day before her scheduled appearance admonishing her to appear 

in Jefferson County, he did not repeat these communications in regard to Harris 

County. In phrasing his questions, Sasser emphasized that Bailey’s bond had been 

revoked in Harris County prior to her scheduled appearance on September 21, 

whereas in Jefferson County, Bailey’s bond had not been revoked prior to her 

failure to appear there on September 15. 

Later, during recross-examination, Sasser returned to the substance of the 

communications about the Jefferson County case, and he asked Roberts to confirm 

that Bailey understood that if she had appeared at the hearing in Beaumont, she 

would have been taken into custody. 

G. Bailey’s testimony

Once the State rested, the defense called Bailey to the stand. She emphasized 

that she had not wanted to be taken into custody on the Brazoria County warrants 

because she wanted the opportunity “to take care of everything” and have her “fair 

day in court.” She also discussed meetings in which Roberts’s office mate, Lewis, 

offered to defend her on the Brazoria County charge for $30,000. According to 

Bailey, in addition to allowing Roberts to attend a funeral, the rescheduling of the 
16

Harris County hearing also served the purpose of giving her “more time out there

in the free world to get money together to give attorneys.” 

After reviewing the substance of these discussions with attorneys Roberts 

and Lewis, defense counsel asked Bailey about her understanding of her general 

status at that time with respect to her various pending criminal proceedings. 

Bailey’s response specifically addressed the outstanding warrants for her arrest:

Q. (By Mr. Sasser) Okay. So, after you left your meeting, that last 

meeting, the one that was right before the off-docket reset was 

done, did you feel like if you got this money together that you 

would be able to stay out of custody and fight your cases like 

you had been out before?

A. Yes, I did.

Q. And why?

A. Because . . . once retained and everything, the plan was to do a 

non-arrest bond in Brazoria County. That would have alleviated 

any warrants, I wouldn’t have had warrants in any counties, and 

I would have had a good reputable person from Brazoria 

County to help me fight the charge that was brought against me.

Defense counsel also asked Bailey to explain her failure to appear in Jefferson 

County:

Q. Why did you not go to Beaumont when you were supposed to 

go? You said you had multiple reasons. You were talking about 

your first reason.

A. Okay. The first reason I had is because of my bond being 

revoked in Harris County. I wasn’t prepared for that. The 

second reason was because when speaking with my attorney at 

that time, when he—when Mr. Roberts said he sent me the 
17

e-mail, I didn’t even get the e-mail. I was under the impression 

that our plan was to handle all of my cases at one time, and, you 

know, I guess to have a plan for everything.

She thus testified that she did not appear in Jefferson County because she “wasn’t 

prepared” for her bond revocation in Harris County, and she was under the 

“impression” that the “plan” arranged with her attorney was to consolidate and 

resolve all of the pending charges. When Bailey was asked why she did not appear 

in Harris County on September 21, she answered, “Because according to the 

agreement I had on the bail agreement, my bond was revoked.” Bailey went on to 

explain that she had a background in real estate and was familiar with contracts. 

Rather than relying on Bailey’s own lay understanding of the implications of 

the revocation of bail to establish the reasonableness of her excuse, defense 

counsel then sought to bolster the reasonableness of Bailey’s understanding of her 

contract with the bonding company:

Q. (By Mr. Sasser) Well, what did you do when you found out it 

was revoked? Did you try to get an understanding of this 

agreement?

A. Yes, I did.

Q. Who did you try to get that understanding from?

A. From my attorney, Mr. Roberts, and from the bonding 

company.
18

H. Defense closing argument and judgment of conviction

The jury charge contained an instruction on the defense of reasonable excuse 

that specifically addressed Bailey’s claim that she had believed the revocation of 

her Harris County bond on September 8 relieved her of the obligation to attend 

court on September 21. See TEX. PENAL CODE § 38.10(c). In his closing argument, 

Sasser admitted that Bailey had failed to appear but argued that the jury should 

acquit her because she had a reasonable excuse. He contrasted Bailey’s situation in 

Jefferson County, where her bond had not been revoked, and her circumstances in 

Harris County, where bond had been revoked prior to her scheduled appearance. 

Sasser noted that Roberts had specifically warned Bailey to appear in 

Jefferson County, but he had not warned her about Harris County. He emphasized 

that in response to the charges pending against her in three different counties, 

Bailey did “the one thing she knows to do, call her attorney, says: Hey what do we 

do?” The thrust of this argument was that she reasonably placed her trust in 

Roberts to manage the situation, and that his failing rather than hers resulted in her 

failure to appear. Sasser argued: 

We know he didn’t send her anything else to say: Hey, look you need 

to come to Houston. You need to come to this court as well or else 

this could happen. We know that because he said he did not e-mail her 

anything.

. . . .
19

The defendant testified and said she had conversations with 

Mr. Roberts. And, basically, it was, you know, if you can get this 

money together, we can try to take care of your problems. And that’s 

what she was trying to do.

. . . .

. . . She was trying to get a solution. She was counting on her 

attorneys at the time to help her out of—a helpless situation, really, at 

the time; but in her mind, she was thinking, maybe I can still stay out. 

I mean, as a defendant that’s what you think. I don’t want to be in jail. 

And she’s thinking, if I can get this money together like my attorneys 

told me, they can take care of all this stuff. By the way, my bondsmen 

already told me my bond is revoked in the court. My attorneys already 

told me my bond is revoked in the court. There’s no consequence. If I 

don’t go to court, I’m just going to get my affairs in order, try to get 

money together, get all cases consolidated, taken care of.

(Emphasis supplied.) Sasser thus argued that Bailey’s course of conduct had been 

sanctioned by the attorneys she had retained to manage her legal problems, 

emphasizing her desire to remain free from custody so that she could gather money 

to hire Lewis as her attorney in Brazoria County and consummate her plans with 

Roberts to resolve the Jefferson County and Harris County charges together. 

The jury found Bailey guilty, and after a hearing on punishment, imposed a 

fine of $10,000 and a prison sentence of ten years. The judge entered judgment on 

the jury’s verdict. Bailey filed a notice of appeal and Sasser moved to withdraw.

Analysis

Bailey argues that she received ineffective assistance of counsel and that the 

trial court erred by denying her motion for mistrial.
20

I. Ineffective assistance of counsel

Bailey argues that she received ineffective assistance of counsel, but only 

based upon a portion of Sasser’s cross-examination which elicited testimony about 

attorney–client communications. The only examination alleged to be deficient was 

that which came before the trial judge ruled “the door has been opened” to 

questioning about Jefferson County. Bailey does not complain on appeal that 

Sasser rendered ineffective assistance by failing to explain the legal implications of 

her express waiver of privilege, by opening the door to evidence about the 

Jefferson County extraneous offense, by continuing his examination on that subject 

after the denial of a mistrial, or by arguing to the jury that she had a reasonable 

excuse based on her communications with her lawyer.

The constitutional right to counsel in a criminal prosecution exists to protect 

the fundamental right to a fair trial. Strickland v. Washington, 466 U.S. 668, 684, 

104 S. Ct. 2052, 2063 (1984). In this context, “a fair trial is one in which evidence 

subject to adversarial testing is presented to an impartial tribunal for resolution of 

issues defined in advance of the proceeding.” Id. at 685, 104 S. Ct. at 2063. “The 

benchmark for judging any claim of ineffectiveness must be whether counsel’s 

conduct so undermined the proper functioning of the adversarial process that the 

trial cannot be relied on as having produced a just result.” Id. at 686, 104 S. Ct. at 

2064. “This right does not mean errorless or perfect counsel whose competency of 
21

representation is to be judged by hindsight.” Robertson v. State, 187 S.W.3d 475, 

483 (Tex. Crim. App. 2006). Claims that a defendant received ineffective 

assistance of counsel are governed by a two-part test: (1) whether the attorney’s 

performance was deficient, i.e., did counsel make errors so serious that he or she 

was not functioning as the “counsel” guaranteed by the Sixth Amendment; and if 

so, (2) whether that deficient performance prejudiced the party’s defense. 

Strickland, 466 U.S. at 687, 104 S. Ct. at 2064. “An appellate court looks to the 

totality of the representation and the particular circumstances of each case in 

evaluating the effectiveness of counsel.” Thompson v. State, 9 S.W.3d 808, 813 

(Tex. Crim. App. 1999); see also Okonkwo v. State, 398 S.W.3d 689, 693 (Tex. 

Crim. App. 2013) (appellate review focuses on the objective reasonableness of 

counsel’s actual conduct “in light of the entire record”).

The adequacy of attorney performance is judged against what is reasonable 

considering prevailing professional norms. Strickland, 466 U.S. at 688, 104 S. Ct. 

at 2065. There is a strong presumption that, considering the circumstances, a 

lawyer’s choices were reasonably professional and motivated by sound trial 

strategy. Id. at 689, 104 S. Ct. at 2065; Nava v. State, 415 S.W.3d 289, 307–08

(Tex. Crim. App. 2013). In the face of this presumption, a criminal defendant has 

the burden of showing by a preponderance of the evidence that his attorney failed 

to provide constitutionally adequate representation. Bone v. State, 77 S.W.3d 828, 
22

836 (Tex. Crim. App. 2002). Limitations of the record often render a direct appeal 

inadequate to raise a claim of ineffective assistance of counsel. See Goodspeed v. 

State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005). “An ineffective-assistance 

claim must be firmly founded in the record and the record must affirmatively 

demonstrate the meritorious nature of the claim.” Menefield v. State, 363 S.W.3d 

591, 592 (Tex. Crim. App. 2012); see also Thompson, 9 S.W.3d at 813. That 

necessary firm foundation is lacking in this direct appeal. As such, this is not the 

“rare case in which the trial record will by itself be sufficient to demonstrate an 

ineffective-assistance claim.” Nava, 415 S.W.3d at 308.

As applicable to this case, Rule 511(1) of the Rules of Evidence provided: 

“A person upon whom these rules confer a privilege against disclosure waives the 

privilege if . . . the person . . . voluntarily discloses or consents to disclosure of any 

significant part of the privileged matter unless such disclosure itself is privileged.” 

TEX. R. EVID. 511(1).8The mere disclosure of privileged materials by a 

defendant’s lawyer, by itself, does not give rise to a presumption of waiver. 

Carmona v. State, 941 S.W.2d 949, 953 (Tex. Crim. App. 1997). Nevertheless, 

 

8 Effective April 1, 2015, Rule 511 has been amended with the design of 

aligning Texas law with federal law on waiver of privilege by voluntary 

disclosure. Misc. Docket No. 14–9232 (Tex. Nov. 19, 2014); see also TEX.

R. EVID. 511 cmt. (2015). Rule 511(1) as quoted above remains as part of 

the “General Rule” as stated in the new Rule 511(a).
23

“the totality of the circumstances and reasonable inferences therefrom may support 

a finding of waiver.” Id. at 954; Wright v. State, 374 S.W.3d 564, 579 (Tex. 

App.—Houston [14th Dist.] 2012, pet. ref’d). 

Courts have recognized several circumstances in which the waiver of a 

privilege is implied. Consistent with Rule 511’s acknowledgement that consent to 

disclosure of “any significant part” of a privileged matter may constitute waiver of 

the whole, a privilege may not be waived selectively to disclose only such 

evidence as may be beneficial to the party holding the privilege.

9

In this sense, a 

 

9

See Rodriguez v. State, 94 S.W.2d 476, 479–80 (Tex. Crim. App. 1936) 

(finding implied waiver of attorney–client privilege and admitting attorney’s 

testimony about guilty plea, over objection, when appellant testified that 

former guilty plea was made on attorney’s advice); Jones v. State, 181 

S.W.3d 875, 878 (Tex. App.—Dallas 2006, pet. ref’d); Carmona v. State, 

947 S.W.2d 661, 664 (Tex. App.—Austin 1997, no pet.); 1 MCCORMICK ON 

EVIDENCE § 93 (7th ed. 2013) (“Waiver may be found . . . from conduct such 

as partial disclosure which would make it unfair for the client to invoke the 

privilege thereafter.”); cf. Wilkens v. State, 847 S.W.2d 547, 551 (Tex. Crim. 

App. 1992) (Appellant’s Fifth Amendment rights were not violated when he 

introduced part of psychiatric examination evidence to prove insanity 

defense and State introduced testimony from examining psychiatrists to 

rebut his presentation of defense); Draper v. State, 596 S.W.2d 855, 857 

(Tex. Crim. App. [Panel Op.] 1980) (“Once having related part of the facts 

of the transaction, a witness should not be permitted to assert a Fifth 

Amendment privilege to prevent disclosure of additional relevant facts.”);

Stephens v. State, 59 S.W.3d 377, 380 (Tex. App.—Houston [1st Dist.] 

2001, pet. ref’d); Aetna Cas. & Surety Co. v. Blackmon, 810 S.W.2d 438, 

440–41 (Tex. App.—Corpus Christi 1991, orig. proceeding) (waiver found 

when holder of privilege deliberately revealed privileged matter while 

preparing an expert witness to testify).
24

privilege cannot be used simultaneously “as a shield and a sword”: after a partial 

disclosure is used as a sword to gain litigation advantage, the privilege cannot then 

be used to shield the remainder of the privileged communication.10 With specific 

reference to the attorney–client communication privilege, it may be implicitly 

waived by raising issues regarding the performance of counsel,11 particularly if an 

issue is injected into the case which requires the attorney’s testimony.12 And a 

 

10 See In re Lott, 424 F.3d 446, 454 (6th Cir. 2005) (“litigants cannot hide 

behind the privilege if they are relying upon privileged communications to 

make their case”); Bittaker v. Woodford, 331 F.3d 715, 719 (9th Cir. 2003); 

In re von Bulow, 828 F.2d 94, 103 (2d Cir. 1987); see also Clark v. United 

States, 289 U.S. 1, 15, 53 S. Ct. 465, 469 (1933) (“The privilege takes flight 

if the relation is abused.”); Republic Ins. Co. v. Davis, 856 S.W.2d 158, 163 

(Tex. 1993) (“In an instance in which the privilege is being used as a sword 

rather than a shield, the privilege may be waived.”).

11 See Lott, 424 F.3d at 452–53; Bittaker, 331 F.3d at 718–19 (citing Hunt v. 

Blackburn, 128 U.S. 464, 9 S. Ct. 125 (1888)); see also U.S. Fire Ins. Co. v. 

Asbestospray, Inc., 182 F.3d 201, 212 (3d Cir. 1999) (privilege waived when 

party “has made the decision and taken the affirmative step in the litigation 

to place the advice of the attorney in issue”) (quoting Rhone-Poulenc Rorer, 

Inc. v. Home Indem. Co., 32 F.3d 851, 863 (3d Cir. 1994)); Garcia v. Zenith 

Elecs. Corp., 58 F.3d 1171, 1175 n.1 (7th Cir. 1995) (noting that “the 

attorney–client privilege is generally waived when the client asserts claims 

or defenses that put his attorney’s advice at issue in the litigation”);

Developments in the Law–Privileged Communications, Implied Waiver, 98 

HARV. L. REV. 1629, 1638 (1985) (“The privilege is held to be waived when 

a client attacks the quality of his attorney’s advice . . . .”).

12 See Lott, 424 F.3d at 453 (citing Johnson v. Alabama, 256 F.3d 1156, 1178 

(11th Cir. 2001). This particular means of implied waiver often arises 

through allegations of ineffective assistance. See, e.g., Bittaker, 331 F.3d at 

716–17; Tasby v. United States, 504 F.2d 332, 336 (8th Cir. 1974) (“When a 
25

defense based on an assertion of good-faith reliance on the advice of counsel also 

has been held to impliedly waive the attorney–client communication privilege.13

The touchstone of these various theories of implied waiver is that some litigation 

conduct requires, in fairness, that the remainder of the privileged communication 

be divulged.14 The scope of an implied waiver of privilege is a legal question to be 

 

client calls into public question the competence of his attorney, the privilege 

is waived.”); Youkers v. State, 400 S.W.3d 200, 212 (Tex. App.—Dallas 

2013, pet. ref’d) (“Youkers necessarily placed in issue privileged 

communications when he argued his attorney breached her legal duty to 

provide effective assistance of counsel”).

13 See United States v. Bilzerian, 926 F.2d 1285, 1292 (2d Cir. 1991); see also

United States v. Workman, 138 F.3d 1261, 1263–64 (8th Cir. 1998); 

Livingstone v. N. Belle Vernon Borough, 91 F.3d 515, 536–37 (3rd Cir. 

1996); 1 MCCORMICK, supra, § 93 (“if a party interjects the ‘advice of 

counsel’ as an essential element of a claim or defense, then that party waives 

the privilege as to all advice received concerning the same subject matter”).

14 See, e.g., Bittaker, 331 F.3d at 719 (“courts and commentators have come to 

identify this simple rule as the fairness principle”); Bilzerian, 926 F.2d at 

1292 (“the privilege may implicitly be waived when defendant asserts a 

claim that in fairness requires examination of protected communications”); 

see also United States v. Miller, 600 F.2d 498, 501 (5th Cir. 1979) (“We 

obviously cannot condone a practice that enables a defendant or any witness, 

after giving the jury his version of a privileged communication, to prevent 

the cross-examiner from utilizing the communication itself to get at the 

truth.”). Consistent with this principle, the recent amendment to Texas Rule 

of Evidence 511, effective April 1, 2015, provides that when a voluntary 

disclosure covered by the attorney–client privilege is made in a state 

proceeding, the waiver extends to undisclosed communications only if:

(A) the waiver is intentional;
26

determined under the rules of evidence,15 and thus it is not necessarily defined by 

the client’s own articulation of the scope of privilege she intends to waive while at 

the same time authorizing disclosure of privileged communications considered 

helpful to her.

All of these considerations are implicated by this case. Bailey’s defense 

theory was reasonable mistake. That theory was substantially predicated on her 

reliance on the counsel she claimed she received from her attorney.

16 In the course 

 

(B) the disclosed and undisclosed communications or information 

concern the same subject matter; and

(C) they ought in fairness be considered together. 

TEX. R. EVID. 511(b)(1).

15 Cf. Granada Corp. v. Honorable First Court of Appeals, 844 S.W.2d 223, 

225 (Tex. 1992) (orig. proceeding) (acknowledging trial court must 

“interpret legal rules” in evaluating waiver of privilege).

16 The dissent suggests that “[p]rior to Sasser’s cross-examination of Roberts 

during which confidential evidence related to the extraneous offense in 

Jefferson County was disclosed, there was no evidence that appellant blamed 

her mistaken belief on advice of counsel or that Roberts ever told her that 

she did not need to appear at trial.” Such evidence would not be necessary 

for the trial court to conclude that Bailey had waived privilege by consenting 

to disclosure of a “significant part” of her attorney communications, see 

TEX. R. EVID. 511, but regardless, a review of the entire trial record shows 

otherwise. As early as voir dire, defense counsel previewed the reasonablemistake trial strategy by asking the venire panel whether there was “any 

reason” they could imagine “someone might not show up for court.” Before 

Roberts was called to the stand, Sasser cross-examined the court coordinator 

about the procedures applied when a defendant fails to appear, and asked: “If 
27

of examining her former lawyer to establish her legal defense, Bailey stated an 

intention to limit the scope of her waiver of the privilege. Sasser sought to exploit 

that attempted limitation through selective disclosure, eliciting Roberts’s testimony 

only about communications expected to be helpful to the defense theory—a tactic 

which was harshly critical of the witness’s professionalism. Through his questions 

Sasser disclosed communications about the proposed Brazoria County 

representation, using that testimony to portray the advice as tainted by the desire to 

collect a fee. His questions also caused the disclosure of communications 

concerning the need to actually appear for the Harris County hearing, which he 

depicted as inadequate relative to the risk of not appearing, as well as confused by 

the effect of the prior bond revocation. All this evidence was selectively elicited 

 

the defense attorney were to come to you and say: Hey, look, I just forgot to 

tell my client, my bad, my mistake, is that any type of problem?” In 

response, the coordinator stated: “They need to address it with the Judge.” 

Then before any testimony was elicited about attorney–client

communications relating to the Jefferson County charge, Sasser used his 

cross-examination to suggest that Roberts failed to adequately advise Bailey 

about the importance of appearing for the pretrial hearing and the potential 

consequences of failing to appear. Accordingly, it is not the case, as 

apparently suggested by the dissent, that the defense theory of reasonable 

mistake due to reliance on counsel arose merely as an afterthought to 

mitigate the damage after defense counsel deliberately elicited “confidential 

evidence related to the extraneous offense in Jefferson County,” or that the 

theory of reasonable mistake fortuitously sprang from the testimony of the 

bail bondsman.
28

and offensively used in furtherance of the strategy of proving the reasonablemistake defense. 

Bailey’s apparent desire to exclude evidence about the Jefferson County 

communications constituted an assertion of the privilege as a shield against the use 

of what turned out to be prejudicial information divulged as part of the broader 

context of the representation: that Roberts actually had documented his significant 

efforts to inform and advise her about the consequences of a failure to appear.

Those communications were interconnected with communications about the Harris 

County case in both time and substance. Bailey failed to appear for a court date in 

Harris County less than a week after she failed to appear in Jefferson County, 

against Roberts’s strongly worded advice which expressly warned that a failure to 

appear “necessarily complicates your Harris County case.” To affirmatively rely 

upon suggested deficiencies in the evidence of communications about the need to 

appear in Harris County while excluding the evidence about the need to appear in 

Jefferson County would leave an unfair and misleading impression that Roberts 

had not adequately advised Bailey about the serious implications of failing to 

appear.

The decision to divulge a substantial part of her privileged communications

to establish a defense of reasonable mistake in this case—for which Bailey gave 

express consent—was itself sufficient to waive privilege as to the additional related 
29

and relevant interwoven communications. See TEX. R. EVID. 511. That waiver was 

implied, and the proverbial door was opened, well before Sasser ever crossed the 

boundary of express consent through the questions now alleged to constitute 

deficient performance on his part. It was already implied by the time Sasser 

elicited the communications about the failure to appear in Jefferson County. 

A waiver of privilege is narrowly construed,17 and the reasonable-mistake 

defense was not a blanket waiver of all attorney–client communications, including 

ones unrelated to the mistake defense.18 But by pursuing a strategy and persistently 

arguing that she had a reasonable excuse for her failure to appear based on her 

communications with her lawyer, Bailey did place all her communications with 

Roberts relevant to that particular subject at issue. This understanding of the 

challenged line of questions is essentially conceded on page 4 of the appellant’s 

brief, which concedes: “As part of her reasonable explanation defense, Bailey 

 

17 “Implied waivers are consistently construed narrowly. Courts ‘must impose 

a waiver no broader than needed to ensure the fairness of the proceedings 

before it.” In re Lott, 424 F.3d at 453 (quoting Bittaker, 331 F.3d at 720). 

This is because “[a] broad waiver rule would no doubt inhibit the kind of 

frank attorney–client communications and vigorous investigation of all 

possible defenses that the attorney–client and work product privileges are 

designed to promote.” Bittaker, 331 F.3d at 722.

18 Cf. Marathon Oil Co. v. Moye, 893 S.W.2d 585, 590 (Tex. App.—Dallas 

1994, no writ) (voluntary disclosure of significant part of privileged material 

can result in implied waiver of privilege to other documents, though waiver 

does not automatically allow disclosure of all privileged materials).
30

consented to waiver of the privilege regarding a charge in Brazoria County.” 

Despite the self-serving limitations stated as part of Bailey’s express consent, by 

asserting the defense she necessarily consented to waiver of all the related and 

interwoven communications, including those about the importance of appearing in 

Jefferson County.

In response to this implied-waiver analysis, the dissent attempts to 

distinguish this appeal from Carmona v. State,

19 observing that in Carmona the 

defendant’s selective disclosure of privileged polygraph results related to “the 

defense of the same charged offense” (sexual assault and indecency with a child) 

as did the incriminatory statements made before the polygraph exam, which the 

defendant sought to protect from disclosure. Meanwhile in this appeal, the dissent 

emphasizes that “Roberts represented appellant in two separate cases”—i.e.,

separate charges of fraudulent use or possession of identifying information filed in 

Jefferson and Harris Counties—and “[d]iscussions that the two may have had 

about one case would not be relevant and admissible as to the other.” The 

distinction of two separate charges makes no difference in this appeal, in which the 

communications on both of two charges had relevance to Bailey’s reasonableexcuse defense to a separate third charge, arising from her later failure to appear in 

court as required in Harris County. The attorney–client communications about the 

 

19 947 S.W.2d at 664.
31

need to appear had no relevance and would not have been admissible on either of 

the original Jefferson County and Harris County charges. Those communications 

only gained relevance and became admissible when Bailey injected them into the 

trial on a separate charge in her attempt to prove that she had a reasonable excuse 

for failing to appear.

The trial judge ruled that Bailey had waived her privilege. The record

supports that ruling. Like other evidentiary rulings, a trial court’s ruling 

determining that a privilege has been waived is reviewed for abuse of discretion, is 

upheld when it is within the zone of reasonable disagreement, and may not be 

reversed “solely because the appellate court disagrees with the decision.”20

Considering the totality of the circumstances and the reasonable inferences 

therefrom, the trial court did not abuse its discretion in finding implied waiver. The 

record does not provide a firm foundation to affirmatively establish that 

confidential communications were elicited without Bailey’s actual consent, as the 

 

20 Cameron, 241 S.W.3d at 19–20; Carmona, 947 S.W.2d at 664. Due to the 

fact-specific nature of the inquiry, courts also have reviewed implied waiver 

rulings in particular for abuse of discretion. See, e.g., Davis, 856 S.W.2d at 

164 (reviewing trial court’s decision on waiver of attorney–client privilege 

for abuse of discretion); In re Grand Jury Proceedings, 219 F.3d 175, 183 

(2d Cir. 2000) (“Whether fairness requires disclosure has been decided by 

the courts on a case-by-case basis, and depends primarily on the specific 

context in which the privilege is asserted.”); but see United States v. 

Mendelsohn, 896 F.2d 1183, 1188 (9th Cir. 1990) (reviewing de novo 

court’s holding that privilege had been waived).
32

record is conflicted on that subject.21 Ordinarily, we may presume that an 

appellant’s trial lawyer fully explained the possible consequences of eliciting 

 

21 Bailey’s depiction of the record in this regard is materially incomplete in its 

failure to acknowledge and address the totality of the circumstances and the 

reasonable inferences therefrom, including aspects of the record that do 

suggest an actual waiver of the privilege as found by the trial court, her 

statements on the record notwithstanding. Our dissenting colleagues reach 

the opposite conclusion by ignoring the implied-waiver doctrine and by 

accepting Bailey’s and Sasser’s statements as the conclusive facts 

concerning their communications. The trial judge, who was in a better 

position in the courtroom to observe these events as they transpired, 

concluded otherwise, and the dissent does not contend that there was no 

evidence to support that conclusion. The case identified in the dissent, Ex 

parte Varelas, 45 S.W.3d 627 (Tex. Crim. App. 2001), provides no authority 

for overriding the trial judge’s discretion as to this issue. Unlike Bailey’s 

direct appeal, which comes to us without the benefit of a post-trial 

evidentiary hearing, Varelas was an appeal from the denial of a postconviction application for a writ of habeas corpus. Varelas, 45 S.W.3d at 

629. On the direct appeal in that case, the Court of Criminal Appeals had 

rejected the appellant’s claim of ineffective assistance, noting the 

inadequacy of the record. Id. at 632 (citing Varelas v. State, No. 72178, slip 

op. at 10–11 (Tex. Crim. App. Mar. 4, 1997) (not designated for 

publication)). The crucial Varelas affidavit was submitted after trial had 

concluded, in the context of the post-conviction habeas proceeding. On the 

particular facts of that case, the Court concluded that the trial court’s finding 

that trial counsel had used sound trial strategy in not requesting a limiting 

instruction relating to evidence of the appellant’s extraneous acts was 

“unsupported by the record.” Id. at 632 n.5; see also id. at 646–47 (Holland, 

J., concurring in the denial of rehearing) (“I stand by the Court’s opinion that 

there is no evidence in the record to suggest that the failure to request 

limiting instructions was the result of trial strategy.”). Varelas thus involved 

a record that gave no support to the trial court’s crucial factual finding in 

support of its ruling, and as such it is readily distinguishable from this direct 

appeal and its conflicted record relating to the waiver issue.
33

evidence at trial.22 Thus, at this procedural stage and on this record, there is no 

need to address whether it would have been constitutionally deficient performance 

in this case for trial counsel to inadvertently effect an implied waiver of privilege 

by a selective disclosure of privileged communications, when the record reflects 

that the selective disclosure was expressly authorized by the client, but the record 

is silent as to whether counsel actually and correctly advised his client about the 

legal effect of the selective disclosure (other than counsel’s twice-repeated 

assurance to the court that he had discussed the matter with the defendant).

Given the statutory defense of reasonable mistake and counsel’s evident 

strategy in advocating for an acquittal on that basis, this appeal does not 

conclusively establish that trial counsel’s questions about Jefferson County were so 

outrageous that no reasonable attorney would have asked them. “[T]rial counsel 

should ordinarily be afforded an opportunity to explain his actions before being 

denounced as ineffective,” Rylander v. State, 101 S.W.3d 107, 111 (Tex. Crim. 

App. 2003), and that has not yet happened in this case outside the context of trial 

 

22 See Robertson v. State, 187 S.W.3d 475, 484 (Tex. Crim. App. 2006) (citing 

Strickland, 466 U.S. at 689, 104 S. Ct. 2052); see also Carmona, 947 

S.W.2d at 664 (concluding based on evaluation of record that it was “not 

irrational for the trial court to infer” that the client authorized a disclosure of 

privileged communications, “hoping for favorable results”).
34

counsel’s active, ongoing representation of Bailey.

23 Certainly the circumstances 

here are not comparable to other examples of alleged misconduct that the Court of 

Criminal Appeals has found insufficiently outrageous to support a finding of 

deficient performance in the absence of an explanation by counsel.24

Bailey also cannot demonstrate harm under the second prong of Strickland. 

Despite Sasser’s statements to the effect of “falling on his sword,” after 

unsuccessfully moving for a mistrial he subsequently made the strategic decision to 

continue to elicit confidential communications from Roberts and to use them to 

argue the reasonable-mistake defense. The record does not provide a firm 

foundation for a claim that Bailey was harmed by this, considering that the 

evidence was all but conclusive as to her guilt on the failure to appear charge, save 

the possibility of persuading the jury she had a reasonable excuse.

 

23 See also State v. Thomas, 428 S.W.3d 99, 106 (Tex. Crim. App. 2014) 

(“When counsel faces an ineffective-assistance claim, the attorney–client

privilege is waived, and trial counsel has the opportunity to explain his 

actions.”); Bone v. State, 77 S.W.3d 828, 836 (Tex. Crim. App. 2002)

(“Under our system of justice, the criminal defendant is entitled to an 

opportunity to explain himself and present evidence on his behalf. His 

counsel should ordinarily be accorded an opportunity to explain her actions 

before being condemned as unprofessional and incompetent.”).

24 See, e.g., Menefield v. State, 363 S.W.3d 591, 593 (Tex. Crim. App. 2012)

(failure to object to an infringement of the client’s right to confront 

witnesses); Goodspeed v. State, 187 S.W.3d 390, 393–94 (Tex. Crim. App. 

2005) (failure to ask questions on voir dire); Thompson, 9 S.W.3d at 814 

(failing to continue objecting to significant hearsay).
35

We overrule Bailey’s first issue alleging ineffective assistance of counsel.

II. Mistrial

In the alternative, Bailey contends that the trial court abused its discretion 

when it denied her motion for mistrial. She claims that Roberts’s disclosure of 

privileged information was highly prejudicial, that no curative measures were 

taken by the court, and that the disclosure likely affected the jury’s verdict.

In addition to our explanation, above, that the privilege already had been 

waived before the line of questions that gave rise to the motion for mistrial, we 

also note that the testimony of which Bailey now complains was introduced by her 

own attorney. “[A] defendant may not complain of evidence elicited by [her] own 

attorney.” Ex parte Ewing, 570 S.W.2d 941, 948 (Tex. Crim. App. [Panel Op.] 

1978); see also Durrough v. State, 672 S.W.2d 860, 873 (Tex. App.—Corpus 

Christi 1984). Therefore, the trial court did not abuse its discretion in refusing to 

grant a mistrial.
36

Conclusion

We affirm the judgment of the trial court.

Michael Massengale

Justice 

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

En banc reconsideration was requested. TEX. R. APP. P. 49.7.

A majority of the justices of the Court voted in favor of reconsidering the case en 

banc.

The en banc court consists of Chief Justice Radack, and Justices Jennings, Keyes, 

Higley, Bland, Massengale, Brown, Huddle, and Lloyd.

Justice Massengale, writing for the majority of the en banc court, joined by Justices 

Bland, Brown, Huddle, and Lloyd. 

Chief Justice Radack, joined by Justices Jennings, Keyes, and Higley, dissenting.

Publish. TEX. R. APP. P. 47.2(b).