Opinion
No. 05-04-01855-CR
Opinion Filed December 28, 2005. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 204th Judicial District Court, Dallas County, Texas, Trial Court Cause No. F02-25109-Q. Affirmed.
Before Justices O'NEILL, FITZGERALD, and LANG.
MEMORANDUM OPINION
A jury convicted appellant, Masoud Shane Salatini, of aggravated assault and sentenced him to fifteen years' imprisonment. Appellant asserts two issues on appeal: (1) he was denied effective assistance of counsel; and (2) the trial court erred in denying his assertion of attorney-client privilege with respect to one of the State's witnesses. The legal issues in this case are well settled. The facts of this case are well known to the parties so we will not recite them in detail For the following reasons, we affirm the judgment of the trial court. In his first issue, appellant outlines a "laundry list" of instances of alleged ineffective assistance of counsel, by his defense attorney, Catherine Shelton, including: failure to object to the prosecutor's questions to the victim; repeatedly asking about a specific instance of conduct of the victim; asking the victim about specific instances of misconduct; asking the victim about possible retaliation; asking a police officer inappropriate questions; admonishment of defense counsel by the trial judge; allegedly futile attempts to introduce evidence; alleged improper testimony by defense counsel; allegedly threatening the prosecutor; improper impeachment of the victim; improper and needless impeachment of defense witnesses; failure to object to the testimony of the victim; opening the door to damaging testimony and extraneous offenses; bolstering the State's case through cross-examination of witnesses; accusing a witness of being infatuated with her; objecting to evidence she had already agreed to admit; "causing" numerous bench conferences; and failure to follow-up with a "key" alibi witness. In response, the State addresses each contention in detail arguing the sufficiency of counsel's actions, and that one cannot assess counsel's strategy, or lack thereof, from the trial record. We evaluate the effectiveness of counsel under the standard enunciated in Strickland v. Washington, 466 U.S. 668 (1984), and adopted in Hernandez v. State, 726 S.W.2d 53, 56-57 (Tex.Crim.App. 1986). To prevail on his claim, appellant must prove by a preponderance of evidence (1) counsel's performance fell below an objective standard of reasonableness, and (2) a reasonable probability exists that, but for counsel's errors, the result would have been different. See Strickland, 466 U.S. at 687-88, 694; Bone v. State, 77 S.W.3d 828, 833 (Tex.Crim.App. 2002); Thompson v. State, 9 S.W.3d 808, 813 (Tex.Crim.App. 1999). Our review of counsel's performance is highly deferential, and we presume counsel provided reasonable assistance. Bone, 77 S.W.3d at 833. Any allegation of ineffectiveness of counsel must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness. Goodspeed v. State, 2005 WL 766996, *2 (Tex.Crim.App. April 6, 2005); Thompson v. State, 9 S.W.3d at 813; McFarland v. State, 928 S.W.2d 482, 500 (Tex.Crim.App. 1996). In this case the record is silent as to trial counsel's strategy. Therefore, we defer to counsel's decisions, if, as here, there is at least the possibility the conduct could have been a legitimate trial strategy. See Goodspeed, 2005 WL 766996 at *2; Ortiz v. State, 93 S.W.3d 79, 88-89 (Tex.Crim.App. 2002). Without trial counsel's explanation, we cannot conclude on appeal that appellant received ineffective assistance of counsel. See Ortiz, 93 S.W.3d at 88-89; Bone, 77 S.W.3d at 836; Thompson, 9 S.W.3d at 813-14. Appellant has not defeated the presumption of effective representation. We decide appellant's first issue against him. In his second issue appellant claims that the trial court erred by denying his claim of attorney-client privilege with respect to the testimony of Lawrence Hitchery. The court held a hearing outside the presence of the jury and determined that Hitchery was incarcerated in the Dallas County jail and shared a cell with appellant for approximately six months. Hitchery was a graduate of Harvard Law School, and surrendered his licence to practice law in lieu of disciplinary proceedings in 1998. Hitchery claimed that he told appellant more than once that he was not a lawyer and had lost his licence. Hitchery also testified that appellant confessed to him. Hitchery further explained that he had several conversations with appellant about manufacturing alibis. Appellant had also wanted Hitchery, if he was released, to threaten one of the State's witnesses. Hitchery helped appellant prepare several motions, copied forms for him, helped him develop questions for his lawyer, and had placed some telephone calls for him. Rule 503 of the Texas Rules of Evidence sets out attorney-client privilege. Tex. R. Evid. 503. "Lawyer" is specifically defined as "a person authorized, or reasonably believed by the client to be authorized, to engage in the practice of law in any state or nation." Tex. R. Evid. 503(a)(3) The rule limits the privilege to preventing disclosure of "confidential communications made for the purpose of facilitating the rendition of professional legal services to the client." Tex. R. Evid. 503(b)(1). No privilege exists if the services of the lawyer were sought or obtained to enable or aid anyone to commit or plan to commit what the client knew or reasonably should have known to be a crime or fraud. Tex. R. Evid. 503(d)(1). Existence of a privilege is a preliminary question of admissibility to be determined by the trial court. Tex. R. Evid. 104(a). The burden of establishing the privilege is on the party asserting it. Strong v. State, 773 S.W.2d 543, 551 (Tex.Crim.App. 1989). The trial court's decision on applicability of the privilege is reviewed for abuse of discretion. Harvey v. State, 97 S.W.3d 162, 168 (Tex.App.-Houston [14th Dist.] 2002, pet. ref'd). In this case it was clearly established that Hitchery had surrendered his law license and was not a "lawyer" as defined in rule 503(a)(1). Appellant did not establish that he "reasonably believed" his cellmate could have represented him in connection with his aggravated assault conviction. Tex. R. Evid. 503(a)(3); see also Strong, 773 S.W.2d at 551. Appellant was represented by trial counsel Catherine Shelton at this time. Finally, appellant's conversations with Hitchery regarding illegal plans and activities are expressly excluded from the privilege. Tex. R. Evid. 503(d)(1); see also Thacker v. State, 852 S.W.2d 77, 82 (Tex.App.-Austin 1993, writ denied). The trial court did not abuse its discretion in denying appellant's claim of attorney-client privilege. We decide against appellant on his second issue. The judgment of the trial court is affirmed.
The indictment and the trial court judgment refer to appellant as Shane Masoud Salatini. The evidence at trial indicates his name is Masoud Shane Salatini as is used in the appellate briefs.