                                                                                       ACCEPTED
                                                                                   03-15-00083-CV
                                                                                           7526153
                                                                        THIRD COURT OF APPEALS
                                                                                   AUSTIN, TEXAS
                                                                             10/23/2015 6:01:49 PM
                                                                                 JEFFREY D. KYLE
                                                                                            CLERK
                              No. 03-15-00083-CV
                               _______________
                                                                  FILED IN
                                                           3rd COURT OF APPEALS
                        In the Court of Appeals                 AUSTIN, TEXAS

                        Third District of Texas            10/23/2015 6:01:49 PM
                                                               JEFFREY D. KYLE
                            Austin, Texas                           Clerk
                               _______________

                             CRAIG A. WASHINGTON,
                                                      APPELLANT
                                      V.

                    COMMISSION FOR LAWYER DISCIPLINE,
                                                  APPELLEE
                            _______________

                    Appealed from the 335th District Court
                          Of Bastrop County, Texas
                 Honorable George Gallagher, Judge Presiding
                               _______________

                          BRIEF OF APPELLEE
                   COMMISSION FOR LAWYER DISCIPLINE
                       (ORAL ARGUMENT REQUESTED)

                               _______________

LINDA A. ACEVEDO                           CYNTHIA CANFIELD HAMILTON
CHIEF DISCIPLINARY COUNSEL                 SENIOR APPELLATE COUNSEL

LAURA BAYOUTH POPPS                        OFFICE OF THE CHIEF DISCIPLINARY
DEPUTY COUNSEL FOR ADMINISTRATION          COUNSEL
                                           STATE BAR OF TEXAS
                                           P.O. BOX 12487
                                           AUSTIN, TEXAS 78711-2487
                                           512.427.1350; 1.877.953.5535
                                           FAX: 512.427.4167
                       NAMES OF PARTIES AND COUNSEL

APPELLANT

CRAIG A. WASHINGTON

COUNSEL FOR APPELLANT

MICHAEL A. STAFFORD
KATHARINE D. DAVID
STACY R. OBENHAUS
JOHN MACVANE

GARDERE WYNNE SEWELL LLP
2000 Wells Fargo Plaza
1000 Louisiana Street
Houston, Texas 77002
Telephone: 713.276.5500
Fax: 713.276.5555

APPELLEE

COMMISSION FOR LAWYER DISCIPLINE
STATE BAR OF TEXAS
P.O. Box 12487
Austin, Texas 78711

COUNSEL FOR APPELLEE

LINDA A. ACEVEDO
Chief Disciplinary Counsel

LAURA BAYOUTH POPPS
Deputy Counsel for Administration

CYNTHIA CANFIELD HAMILTON
Senior Appellate Counsel
STATE BAR CARD NO. 00790419
Email: cynthia.hamilton@texasbar.com

                                       1
State Bar of Texas
P.O. Box 12487
Austin, Texas 78711-2487
512.427.1350; 1.877.953.5535
Fax: 512.427.4167




                               2
                                           TABLE OF CONTENTS
                                                                                                    PAGE
NAMES OF PARTIES AND COUNSEL .............................................................................. 1

INDEX OF AUTHORITIES...............................................................................................5

STATEMENT OF THE CASE .........................................................................................10

STATEMENT OF THE ISSUES .......................................................................................11

STATEMENT OF FACTS...............................................................................................12

SUMMARY OF THE ARGUMENT ..................................................................................14

ARGUMENT AND AUTHORITIES .................................................................................16

I.      Character evidence could not have overcome Washington’s failure to
        refute the compelling evidence of his misconduct, so the trial court did
        not harmfully err by excluding his character witnesses ................................16

        A.       The Commission presented compelling, unrefuted evidence of
                 Washington’s violation of Rule 8.04(a)(3) .........................................17

        B.       Washington could not overcome the Commission’s compelling
                 evidence of his misconduct simply by offering evidence
                 regarding his reputation in the community .........................................23

        C.       TRE 608(a) is not relevant to this appeal because Washington
                 did not rely on it in the trial court and because the Commission
                 did not launch the type of character attack that opens the door to
                 the admission of character evidence under 608(a) ..............................26

II.     Washington was not entitled to a new trial based on the jury’s receipt
        of unadmitted evidence because he cannot show that the jury’s verdict
        probably resulted directly from the unadmitted evidence .............................28

III.    Washington’s complaints regarding the jury charge are without merit
        because the charge properly tracked the language of the disciplinary
        rules and Washington failed to preserve his charge complaints ................... 31

                                                         3
IV.      The “cumulative error” doctrine is irrelevant because the jury’s
         verdict is based on compelling evidence of Washington’s misconduct
         rather than on error by the trial court.............................................................33

V.       The trial court did not abuse its broad sanctions discretion ..........................34

         A.        It is well settled that the trial court, not the jury, determines the
                   appropriate sanction(s) for attorney misconduct .................................34

         B.        The sanctions in this case are not excessive in light of the
                   seriousness of Washington’s misconduct and the egregious
                   harm to his clients................................................................................37

PRAYER .....................................................................................................................39

CERTIFICATES OF COMPLIANCE AND SERVICE ..........................................................40

APPENDIX..................................................................................................................42




                                                              4
                                       INDEX OF AUTHORITIES
CASES                                                                                               PAGE

Bellino v. Commission for Lawyer Discipline,
      124 S.W.3d 380 (Tex.App.—Dallas 2003, pet denied) ................................31

Cire v. Cummings,
      134 S.W.3d 835 (Tex. 2004) .........................................................................37

Collins v. Beste,
      840 S.W.2d 788 (Tex.App.—Fort Worth 1992, writ denied) .......................32

Continental Cas. Co. v. Davilla,
      139 S.W.3d 374 (Tex.App.—Fort Worth 2004, pet. denied) ........................37

Country Village Homes, Inc. v. Patterson, 236 S.W.3d 413 (Tex.App.
     —Houston [1st Dist.] 2007, pet. granted, judgm’t vacated w.r.m.) ............... 29

Davis v. Tex. Dep’t of Family and Protective Services,
      2012 WL 512674 (Tex.App.—Austin 2012, no pet.) (mem. op.) ................. 17

Dudley v. Humana Hospital Corp.,
     817 S.W.2d 124 (Tex.App.—Houston [14th Dist.] 1991, no writ) ................ 16

Estate of Finney,
      424 S.W.3d 608 (Tex.App.—Dallas 2013, no pet.) ......................................16

Hanners v. State Bar of Tex.,
     860 S.W.2d 903 (Tex.App.—Dallas 1993, writ dism’d) ..............................36

In re Caballero,
       441 S.W.3d 562 (Tex.App.—El Paso 2013, orig. proceeding) .....................35

Jaster v. Comet II Constr.,
      438 S.W.3d 556, 562-63 (Tex. 2014) ............................................................35

McIntyre v. Comm’n for Lawyer Discipline,
     247 S.W.3d 434 (Tex.App.—Dallas 2008, pet. denied) .........................31, 33



                                                     5
Michael v. State,
     235 S.W.3d 723 (Tex. Crim. App. 2007) ......................................................26

Mid-South Bottling Co. v. Cigainero,
     799 S.W.2d 385 (Tex.App.—Texarkana 1990, writ denied) ........................29

Olsen v. Comm’n for Lawyer Discipline,
      347 S.W.3d 876 (Tex.App.—Dallas 2011, pet. denied) .........................37, 38

Owens-Corning Fiberglass Corp. v. Malone,
     972 S.W.2d 35 (Tex. 1998) ...........................................................................16

Rhey v. Redic,
      408 S.W.3d 440 (Tex.App.—El Paso 2013, no pet.) ....................................34

Sears, Roebuck & Co. v. Abell,
      157 S.W.3d 886 (Tex.App.—El Paso 2005, pet. denied)..............................32

State Bar of Tex. v. Kilpatrick,
       874 S.W.2d 656 (Tex. 1994) .............................................................34, 37, 38

State v. O’Dowd,
       312 S.W.2d 217 (Tex. 1958) ................................................................... 34-35

Tex. Dep’t of Transp. v. Able,
      35 S.W.3d 608 (Tex. 2000) .....................................................................16, 17

University of Tex. at Austin v. Hinton,
     822 S.W.2d 197 (Tex.App.—Austin 1991, no writ) .....................................33




                                                     6
STATUTES AND RULES                                                                                               PAGE

TEX. DISCIPLINARY RULES PROF’L CONDUCT R. 1.01(b)(1) ....................................32
TEX. DISCIPLINARY RULES PROF’L CONDUCT R. 1.01(c) .........................................32
TEX. DISCIPLINARY RULES PROF’L CONDUCT R. 1.03(a) .........................................32
TEX. DISCIPLINARY RULES PROF’L CONDUCT R. 1.15(d) .........................................32
TEX. DISCIPLINARY RULES PROF’L CONDUCT R. 8.04(a)(3).....................................32

TEX. GOV’T CODE ANN. § 81.077(a) (West 2015) ...................................................35

TEX. R. APP. P. 44.1(a) .......................................................................................16, 29

TEX. R. CIV. P. 272 ...................................................................................................32
TEX. R. CIV. P. 278 ...................................................................................................32

TEX. RULES DISCIPLINARY P. R. 3.09 .................................................................35, 36
TEX. RULES DISCIPLINARY P. R. 3.10 .......................................................................37

SECONDARY MATERIALS                                                                                              PAGE

BLACK’S LAW DICTIONARY 8 (6th ed. 1990) ............................................................35

Merriam-Webster Online Dictionary,
http://merriam-webster.com/dictionary/abrogate (last visited Oct. 22, 2015) ........ 36




                                                           7
                              No. 03-15-00083-CV
                               _______________

                          In the Court of Appeals
                          Third District of Texas
                              Austin, Texas
                               _______________

                             CRAIG A. WASHINGTON,
                                                        APPELLANT
                                       V.

                      COMMISSION FOR LAWYER DISCIPLINE,
                                                    APPELLEE
                              _______________

                      Appealed from the 335th District Court
                            Of Bastrop County, Texas
                   Honorable George Gallagher, Judge Presiding
                               _______________

                            BRIEF OF APPELLEE
                     COMMISSION FOR LAWYER DISCIPLINE
                             _______________

TO THE HONORABLE COURT OF APPEALS:

      Appellee, the Commission for Lawyer Discipline, submits this brief in

response to the brief filed by Appellant, Craig A. Washington. For clarity, this

brief refers to Appellant as “Washington” and Appellee as “the Commission.” It

designates record references as CR (clerk’s record), RR (reporter’s record), Pet.

Ex. (Petitioner’s exhibit to reporter’s record) and App. (appendix). References to

rules refer to the Texas Disciplinary Rules of Professional Conduct unless


                                        8
otherwise noted.1 References to Appellant’s brief are designated “Appellant’s Br.”

followed by the page number.




1
    Reprinted in TEX. GOV’T CODE ANN., tit. 2, subtit. G. app. A (West 2007).
                                              9
                           STATEMENT OF THE CASE

Type of Proceeding:     Attorney Discipline

Petitioner/Appellee:    The Commission for Lawyer Discipline

Respondent/Appellant:   Craig A. Washington

Trial Judge:            The Honorable George Gallagher (sitting by assignment
                        pursuant to Rule 3.02 of the Texas Rules of Disciplinary
                        Procedure)

Judgment:               Judgment of Partially Probated Suspension

Violations found:       Rule 1.01(b)(1): In representing a client, a lawyer shall
                        not neglect a legal matter entrusted to the lawyer.

                        Rule 1.03(a): A lawyer shall keep a client reasonably
                        informed about the status of a matter and promptly
                        comply with reasonable requests for information.

                        Rule 1.15(d): Upon termination of representation, a
                        lawyer shall take steps to the extent reasonably
                        practicable to protect a client's interests, such as giving
                        reasonable notice to the client, allowing time for
                        employment of other counsel, surrendering papers and
                        property to which the client is entitled and refunding any
                        advance payments of fee that has not been earned. The
                        lawyer may retain papers relating to the client to the
                        extent permitted by other law only if such retention will
                        not prejudice the client in the subject matter of the
                        representation.

                        Rule 8.04(a)(3): A lawyer shall not engage in conduct
                        involving dishonesty, fraud, deceit or misrepresentation.




                                       10
                       STATEMENT OF THE ISSUES

Whether the exclusion of character evidence is harmless in a case
where the record shows that the verdict did not turn on the excluded
evidence?

Whether the presence in the jury room of unadmitted evidence is
harmless if it is clear that the jury verdict did not result directly from
the unadmitted evidence?

Whether an appellant who failed to take the steps necessary to
preserve charge error is foreclosed from complaining on appeal about
alleged error in a jury charge?

Whether a district court determines the appropriate sanctions for
attorney misconduct following a jury trial in a disciplinary action?

Whether a reviewing court should affirm disciplinary sanctions that
are well supported by the evidence of record?




                                   11
                                STATEMENT OF FACTS

      On September 21, 2006, Washington filed a lawsuit on behalf of Michael

Gobert and N’Dia Henry (Pet. Ex. 5). The lawsuit essentially sought to recover the

clients’ deceased mother’s home (Pet. Ex 5). The trial court set the lawsuit for trial

on October 5, 2009, and provided the parties with a docket control order regarding

the trial date and associated deadlines on May 12, 2009 (Pet. Ex. 9).

      Washington did not appear for the pretrial hearing on October 2, 2009, or the

trial on October 5, 2009 (Pet. Ex. 10, 17). He also did not seek a continuance of

the trial date in advance (Pet. Ex. 10, 17). As a result, the trial court dismissed the

lawsuit for want of prosecution (Pet. Ex. 10, 17). Washington sought to have the

suit reinstated, but the court denied his motion to reinstate (Pet. Ex. 11, 12, 17).

      The Eighth Court of Appeals affirmed the dismissal of the lawsuit (Pet. Ex.

17). In its opinion, the Court explained that the history of the case warranted

dismissal for want of prosecution because (1) the suit had been on file for more

than three years at the time it was scheduled to go to trial; (2) there was no dispute

that Washington received notice of the trial setting and the pretrial hearing; (3) the

docket control order notified Washington that his failure to attend may result in

dismissal; (4) Washington failed to file any pretrial motions within the established

deadlines and failed to provide witness and deposition lists, proposed jury




                                          12
questions, or a list of exhibits as required by the docket control order; and (5)

Washington provided no explanation for his omissions (Pet. Ex. 17).

      The Eighth Court of Appeals affirmed the dismissal on October 6, 2010 (Pet.

Ex. 17).   However, Washington’s clients did not learn of the dismissal until

October 30, 2012, because he failed to inform them of the dismissal (3 RR 32:24 –

35:9, 45:22-25; 4 RR 149:7 – 151:17).          In fact, as late as June 26, 2012,

Washington misrepresented the status of the lawsuit, leading his clients to believe

that it was still viable on that date (3 RR 32:24 – 35:9, 45:22-25). He also failed to

provide them with copies of their file upon request (3 RR 43:15-24; 4 RR 143:22 –

144:4).

      The Commission alleged that Washington’s conduct violated Rules

1.01(b)(1), 1.03(a), 1.15(d), and 8.04(a)(3) of the Texas Disciplinary Rules of

Professional Conduct (CR 112-15).         After a jury trial and a verdict in the

Commission’s favor, the Honorable George Gallagher entered judgment for the

Commission and imposed sanctions against Washington, including a four-year

partially probated suspension of his law license (1 Supp. CR 4-11). Following a

hearing on Washington’s motion for new trial, Judge Gallagher modified the

original judgment, primarily by reducing the length of the active portion of the

suspension (CR 319-23).




                                         13
                            SUMMARY OF THE ARGUMENT

      In this appeal, Washington does not attempt to argue that the evidence is

insufficient to support the judgment. Instead, he picks apart the transcript from his

jury trial and identifies procedural issues that, he claims, constitute reversible error.

But none of the issues provides a basis for reversal. Nor is there “cumulative

error.”

      Much of Washington’s brief focuses on the trial court’s exclusion of his

character witnesses during the jury phase of the trial. The court admitted character

evidence during the sanctions phase but sustained the Commission’s objection to

its admission in the proceedings before the jury.           And though Washington

insistently urges this Court to reverse the judgment due to the exclusion, it

provides no basis for reversal. Assuming for the sake of argument that the decision

to exclude character testimony was erroneous, the error was clearly harmless

because this case did not turn on character evidence. The Commission presented

compelling, unrefuted evidence of Washington’s misconduct, and he could not

overcome that evidence by putting on testimony regarding his reputation in the

community.

      Similarly, this case did not turn on an exhibit that erroneously found its way

to the jury room. The exhibit included information regarding a brief administrative

suspension of Washington’s law license in 1996 due to non-payment of the

                                           14
attorney occupation tax and/or related penalties or interest.        In light of the

compelling evidence of Washington’s misconduct, it would be unreasonable to

conclude that the jury’s verdict probably resulted directly from the presence of the

exhibit in the jury room. Thus, it cannot provide a basis for reversal.

       Washington also complains about the jury charge, but he did not take the

steps necessary to preserve any error in the charge. Not only did he fail to make

objections on the record to the court’s charge, he also failed to submit written

instructions in substantially correct form. And most importantly, the jury charge

properly tracked the language of the disciplinary rules.

       Washington’s arguments regarding sanctions also have no merit. It is well

established that the trial court, not the jury, determines sanctions in a disciplinary

action. In this case, the trial court’s sanctions find ample support in the record.

Washington’s egregious misconduct and the severe consequences to his clients

justified the court’s decision to impose a one-year active suspension followed by

three years of probation. His numerous prior disciplinary sanctions also support

the sanctions decision.

       All in all, the judgment is well supported by the evidence, and Washington

has not shown reversible error. Therefore, this Court should affirm the judgment

in all respects.




                                         15
                          ARGUMENT AND AUTHORITIES

I.    Character evidence could not have overcome Washington’s failure to
      refute the compelling evidence of his misconduct, so the trial court did
      not harmfully err by excluding his character witnesses.

      Washington first argues that the trial court harmfully abused its discretion by

refusing to admit character evidence that he offered. He argues that the evidence

should have been admitted under Rules 404(a)(1)(B) and 608(a) of the Texas Rules

of Evidence.

       A trial court has broad discretion to make evidentiary rulings, and an

evidentiary ruling must be upheld if there is any legitimate basis for it. Owens-

Corning Fiberglass Corp. v. Malone, 972 S.W.2d 35, 43 (Tex. 1998). Before

reversing a judgment based on the exclusion of evidence, an appellate court must

determine that the exclusion was erroneous and that it probably caused the

rendition of an improper judgment. TEX. R. APP. P. 44.1(a); Tex. Dep’t of Transp.

v. Able, 35 S.W.3d 608, 617 (Tex. 2000). “Reversible error does not usually occur

in connection with evidentiary rulings unless the appellant demonstrates the whole

case turned on the particular evidence excluded or admitted.” Estate of Finney,

424 S.W.3d 608, 612-13 (Tex.App.—Dallas 2013, no pet.) (citing Dudley v.

Humana Hospital Corp., 817 S.W.2d 124, 126 (Tex.App.—Houston [14th Dist.]

1991, no writ)). Erroneous “‘exclusion is likely harmless if the evidence was

cumulative, or if the rest of the evidence was so one-sided that the error likely

                                         16
made no difference.’” Davis v. Tex. Dep’t of Family and Protective Services, 2012

WL 512674 (Tex.App.—Austin 2012, no pet.) (mem. op.) (citation omitted). To

determine harm, the appellate court reviews the entire record. Able, 35 S.W.3d at

617.

       A. The Commission presented compelling, unrefuted evidence of
          Washington’s violation of Rule 8.04(a)(3).

       In this case, Washington argues that he offered character testimony in

response to the Commission’s allegation that he violated Rule 8.04(a)(3), which

prohibits conduct involving dishonesty, deceit, or misrepresentation.2              The

Commission alleged that Washington violated the rule by leading his clients to

believe that their case was still pending long after it had been dismissed for want of

prosecution.

       As part of its case in chief on the allegation that Washington engaged in

conduct involving dishonesty, deceit, or misrepresentation, the Commission

offered testimony from Sherry Carter and Michael Gobert, who were Washington’s

clients (3 RR 21-100; 4 RR 139-212). Ms. Carter and Mr. Gobert presented

compelling testimony regarding Washington’s failure to tell them the truth about

the status of their lawsuit after its dismissal in 2009 for want of prosecution:

2
  The live disciplinary petition quoted the entirety of Rule 8.04(a)(3), which prohibits
conduct involving dishonesty, fraud, deceit, or misrepresentation (CR 114). But at trial,
the Commission pursued a claim that Washington’s conduct involved dishonesty, deceit,
or misrepresentation (not fraud). As a result, “fraud” was not submitted to the jury (CR
144).
                                           17
Carter testimony (3 RR 32- 35):

Q:    When did you first discover that the house might be for sale?

A:      Oh, Lord. I – I had been glancing on the internet one day at work, and
I think I had put the address in or something. I noticed something flashed
that there was a picture of the house and it was for sale. But I was real busy
at work, so I didn’t pay attention to it that much. I just made a mental note
that I’ll discuss it with Mr. Washington when I see him.

      And so I went over to his office on June 26th, and we visited and
talked. And I mentioned to him that I thought I had seen a listing for the
house on the internet, on a website. And I asked him had –

Q:    Let me ask you just a minute. June 26th, what year was that?

A:    2012.

Q:    2012?

A:    Uh-huh.

Q:    Go ahead.

A:     I mentioned – I asked him if he knew where Craig Bush was paying
the taxes on the house, and what would happen if the house caught on fire,
were we sure it was protected. And he let me know that his staff was taking
care of everything, was on top of everything. And that’s what I left the
office believing.

      But when I returned to work, I checked on the internet again. I
checked the Montgomery County real estate website, and I noticed the house
had been sold in March. So I was so shocked, I called his office and let
them know what I had just found out. And I called my husband and asked
him to return to my office and pick me up, I needed to go back to Craig
Washington’s office and show him what I had discovered.

      And so we drove back over there, and I rung the doorbell, and Mr.
Washington came to the door. And I showed him the copy of the sale of the
property. And, of course, he told me – well, he – he looked real shocked.
                                  18
     And he told me that anything can happen. And, I mean, he couldn’t say that
     couldn’t happen, but he wasn’t supposed to be able to sell the house if there
     was some type of hold on it or whatever.

            And then he promised me that he would get in touch with another real
     estate person that would help him with that and he’d get back in touch with
     me.

     Q:    When you say there was some type of hold on the house, did he tell
     you there was a lis pendens on it?

     A:    Yes. Yes.

     Q:    So did you understand what that was?

     A:    Yes. I understood – my understanding was that it couldn’t be sold
     because it was in litigation. And I believed that up to that point.

     Q:    So this was in 2012?

     A:    Yes.

     Q:    And what did he say when you confronted him with the fact that the
     house had been sold?

     A:    Well, he said, well, anything could happen, but he was going to get in
     touch with this other acquaintance that was real knowledgeable in real estate
     and he’d get back in touch with me.

     Q:    Did he ever get back in touch with you?

     A:    No.

     Q:    And that was in June of 2012?

     A:    Yes.

     Contrary to what Washington led Ms. Carter to believe on June 26, 2012, the

lawsuit was over. It had been dismissed on October 14, 2009 (Pet. Ex. 10);
                                       19
Washington’s motion to reinstate had been denied on November 9, 2009 (Pet. Ex.

12); and his appeal had ended on October 6, 2010, with an affirmance of the

dismissal (Pet. Ex. 17).

        Nevertheless, Washington led his clients to believe that their case was not

over.    Mr. Gobert explained that they finally learned the truth long after the

dismissal of their lawsuit was final when, through an internet search, he found the

court of appeals’ decision affirming the dismissal:

        Gobert testimony (4 RR 149-50):

        Q:    What is [Petitioner’s Exhibit 7]?

        A:    Looks like an appeal paper.

        Q:    Okay. What’s the date at the bottom of that?

        A:    October 30th, 2012.

        Q:    Okay.

        A:     I think this is – looks like the paper that I found, what I looked up on
        the internet in the Court of Appeals.

        Q:    Okay.

        A:    Yeah. (Reading to himself.) Yeah, this.

        Q:    Okay. Is that the first time that – did you print this out at the time that
        you looked it up?

        A:    Yes. This is when I found out, around this time.

        Q:    Okay.

                                            20
      A:    2012.

      Q:    So this is a copy of the one you printed out?

      A:    Yes. And showed my grandmother, yes.

      Q:    Okay. And what did you find out when you read this?

      A:    What did I find out?

      Q:    Uh-huh.

      A:     That he did nothing for me or on my case or didn’t show up. Pretrial.
      He didn’t even send a representative. He didn’t do nothing, $10,000 he
      didn’t do nothing. That’s really what this says.

      Q:     Is this the first time you found out that the case – did Mr. Washington
      ever tell you the case had been dismissed?

      A:    Never. I was under the pretense that I still had a case. I was waiting.
      I mean, no.

      That Washington’s clients learned of the final disposition of their case as the

result of an internet search on October 30, 2012, is telling. The court of appeals

had affirmed the dismissal of their lawsuit more than two years earlier on October

6, 2010 (Pet. Ex. 7). Nonetheless, on June 26, 2012, Washington had led them to

believe that he was still working on the case and it could be salvaged (3 RR 32:24

– 35:11). It was not until Mr. Gobert confronted him with the information he

found on the internet that Washington finally admitted the case was lost (4 RR

150:8 – 151:17).




                                         21
      Washington offered little to refute the testimony from Ms. Carter and Mr.

Gobert regarding his misrepresentation of the status of the lawsuit. Washington

testified after Ms. Carter. Thus, at the time he testified, Ms. Carter’s testimony

regarding their conversation of June 26, 2012, was on the record, as was her

testimony that she and Mr. Gobert found out about the final disposition of the

lawsuit as a result of Mr. Gobert’s internet research (3 RR 35:12 – 40:14, 45:21-

25). Nonetheless, Washington never denied Ms. Carter’s description of their June

26th conversation or directly addressed her assertion that he led her to believe the

lawsuit was still alive. In response to his attorney’s question whether he ever told

her that “there were no problems with the case, everything was going smoothly,

even though the case had been dismissed and you appealed it,” Washington was

evasive:

      A:    There were problems with this case from the beginning. From day
      one there were – and I told her what the problems were.

      Q:   In fact, you would receive calls from not just Ms. Carter and Mr.
      Gobert and Mr. Black and the attorneys but from the entire greater family
      would call regularly to find out, when are we going to get our money?

      A:     Everybody was looking for money. And some of them didn’t have an
      interest, wasn’t going to get a dime anyway, but they would still call. And I
      would talk to them because I’m trying to keep the peace.

             Like Mr. Black and Ms. Randle didn’t need to be fighting. They need
      to be on the same side. You don’t need to have Mr. Black mad at her about
      grandparent’s rights. They need to be – those two children are named in the
      thing. They need to be cooperating towards the greater good, which was to
      try to get the property back, not fighting each other over a storage locker full
                                         22
         of furniture and things that were emotionally important, but they had nothing
         to do with a $400,000 house. They needed to be on the same side, on the
         same team, and I did my best to juggle them. . . .

         (4 RR 133:6 – 134:6)

         Washington’s focus on supposed difficulties with the family ignored the real

problems with the lawsuit – his failure to take the steps necessary for the suit to

have any chance at success and his failure to keep his clients informed so that they

could make decisions about how to proceed. He also ignored the compelling

testimony demonstrating that he misrepresented the status of the lawsuit.

         B. Washington could not overcome the Commission’s compelling
            evidence of his misconduct simply by offering evidence regarding his
            reputation in the community.

         Based on the damning testimony against him and the absence of any direct

response from Washington, the evidence left room for only one conclusion – that

Washington led his clients to believe that the lawsuit was still alive long after its

disposition was final. The case was not a he-said-she-said as Washington argues.

It was a case of convincing testimony on one side with no real rebuttal on the

other.     Washington could not overcome unrefuted direct evidence of his

misconduct merely by offering evidence of his reputation. Although he is correct

that this was essentially a three-witness trial (Appellant’s Br. 28), his assertion

overlooks the fact that the Commission called all three witnesses. He did not put




                                           23
on the testimony of a single witness other than very brief, limited testimony by

Sonya Heath. 3

       Despite the one-sided nature of the evidence regarding Washington’s

misrepresentation of the status of the lawsuit, he argues that the admission of his

character evidence probably would have resulted in a different judgment. His

argument cannot succeed because character evidence alone could not overcome the

evidence supporting the jury’s finding that he engaged in conduct involving

dishonesty, deceit, or misrepresentation. No matter how much character evidence

the trial court admitted, the record would still be entirely devoid of evidence to

refute Ms. Randle’s and Mr. Gobert’s testimony. Thus, there would still be the

legal equivalent of no evidence in his favor on this issue.

       In addition, the nature of the character evidence offered by Washington was

unremarkable.      Based on the record, the evidence would not have been

“particularly strong” as Washington claims. Appellant’s Br. 27. It consisted of

testimony from a lawyer who had been licensed to practice law for five years (4

RR 218) and had known Washington for 5-7 years (4 RR 223). Four years prior to


3
  Notably, Ms. Heath both worked in Washington’s law office at the time of the
representation in question and served as co-counsel with Washington on the appeal of the
dismissal of his clients’ lawsuit (Pet. Ex. 15; Pet. Ex. 18 (Ex. F)). In fact, Ms. Heath was
the person who notified the court that Washington would not be present for trial because
of his conflicting setting (Pet. Ex. 18 (Ex. F)). Thus, it is noteworthy that she did not
offer more extensive testimony regarding the facts at issue, especially the disputed facts
regarding notification of the court.
                                            24
her testimony (4 RR 226), she had worked for Washington for “a couple” of those

years (4 RR 224). She testified that she knows hundreds of lawyers and “all” of

them have good things to say about Washington (4 RR 225). She also testified that

“most everybody” she knows thinks highly of his integrity, honesty, and veracity

(4 RR 225).      And she testified that she had little personal knowledge of

Washington’s dealings with the clients at issue in this disciplinary action (4 RR

226-27). 4

      The exclusion of Washington’s character evidence, even if erroneous, was

not harmful. The rest of the evidence regarding Washington’s dishonesty was so

one-sided that any error likely made no difference. He argues that if his character

evidence had been presented to the jury, they “almost certainly would have

credited [his] testimony over that of the complaining witnesses.” Appellant’s Br.

36. But his assertion overlooks that there was no meaningful testimony for the jury

to credit in his favor.    He never directly refuted the strong evidence of his

misconduct. Thus, assuming for the sake of argument that the trial court erred by

excluding his character evidence evidence, the exclusion cannot provide a basis for

reversal.

4
   Upon making his offer of proof regarding the excluded character testimony,
Washington’s attorney represented to the trial court that his other character witnesses
would provide substantially similar testimony (4 RR 228:14-19). Thus, Washington
cannot now argue that the testimony would have been different from Ms. Heath’s
testimony. Importantly, at that time he did not offer testimony from witnesses like a
United States Congresswoman or a Texas State Senator as his brief implies.
                                          25
      C. TRE 608(a) is not relevant to this appeal because Washington did not
         rely on it in the trial court and because the Commission did not
         launch the type of character attack that opens the door to the
         admission of character evidence under 608(a).

      As for his argument regarding TRE 608(a), Washington never made this

argument to the trial court. Thus, he did not preserve it for appeal. In his brief, he

claims that he preserved the issue at 4 RR 216: 22-25. However, his attorney’s

statements at that point in the record do not refer to TRE 608(a) or otherwise

indicate that he was offering character testimony under TRE 608(a).

      Moreover, TRE 608(a) provides for a witness to be rehabilitated through

character evidence as to the witness’s truthfulness only if the witness’s general

character for truthfulness is attacked. Michael v. State, 235 S.W.3d 723, 726 (Tex.

Crim. App. 2007). The question is whether the overall tone and tenor of the

examination of the witness imply that he is a liar. Id. If the examination merely

questions information provided by the witness rather than the witness’s character,

exclusion is proper because the door is not open to character evidence under TRE

608(a). Id.

      The Commission’s questions did not attack Washington’s general character

for truthfulness.   Their point was merely to highlight conflicts between his

testimony and documentary evidence in order to persuade the jury to rely on the

more objectively reliable of the two. This is the quintessential point of a trial.

Each party attempts to put on evidence that conflicts with or calls into question the
                                         26
other party’s position. That is how each side proves its case. Each attempts to

show that the other’s version of events is inaccurate.                 And because the

Commission’s questions were aimed at the accuracy of information provided to

Washington by another person (his staff member who supposedly notified the court

of his conflicting trial settings before the scheduled trial date), characterizing them

as an attack on his general character for truthfulness would be particularly

misplaced. The Commission’s questions were nothing more than unremarkable

attempts to present its evidence to the jury. 5

       In addition, the record excerpts that Washington describes as character

attacks were aimed at proving that he neglected his clients’ case by failing to take

the steps he should have taken in pursuit of their lawsuit. See Appellant’s Br. 25-

26. Thus, they were a necessary part of the Commission’s proof. They were not

superfluous to the elements the Commission had to prove in order to succeed at

trial. As such, any incidental reflection on the truth of Washington’s assertions

was an unavoidable consequence of the Commission’s efforts to put on its case. 6

5
  For example, the Commission’s questioning the positions that Washington took to
defend himself and, in the process, stating that he “claimed” or “alleged” that his criminal
case had precedence cannot fairly be described as a character attack (4 RR 46:22 – 47:2).
6
  Washington complains about the Commission’s use of his deposition to contradict his
testimony as an example of how the Commission opened the door to character evidence
under TRE 608(a). Appellant’s Br. 25. But Washington likewise used Mr. Gobert’s
deposition to contradict his testimony (4 RR 177:3 – 178:17, 185:2 – 186:5), and the
Commission obviously could not have offered testimony regarding Mr. Gobert’s
character for truthfulness under TRE 608(a). Clearly, then, the mere use of a witness’s
inconsistent deposition testimony does not open the door to character evidence.
                                            27
      In short, it was the evidence of record regarding Washington’s actions, not

the absence of character evidence, that proved Washington’s misconduct. The

substantive evidence was so one-sided that it did not leave room for doubt about

whether he fulfilled his obligations to his clients. Character evidence simply could

not have overcome the direct evidence of misconduct or provided a legitimate

basis for a different verdict.

      The character evidence that Washington wished to offer was ultimately

presented in its proper context – at the sanctions hearing. But even as impressive

as the evidence was, it could not overcome the severe hardship that Washington’s

clients experienced as a result of his egregious misconduct. His actions directly

resulted in the loss of their cause of action and caused them to suffer serious

financial and emotional consequences.

II.   Washington was not entitled to a new trial based on the jury’s receipt of
      unadmitted evidence because he cannot show that the jury’s verdict
      probably resulted directly from the unadmitted evidence.

      Washington next complains about unadmitted evidence that was

inadvertently taken into the jury room. The evidence in question is a copy of a

membership record showing that Washington’s law license was briefly suspended

in 1996 “for non-payment of the Texas Attorney Occupation Tax and/or associated

penalties or interest” (Pet. Ex. 1). Although the Commission initially offered the

exhibit, Washington objected and the Commission agreed that submission to the

                                        28
jury was unnecessary, whereupon the trial court admitted the exhibit for purposes

of the record only (3 RR 20:3-23). Apparently neither party took steps to ensure

that the exhibit was removed from the papers taken to the jury room.

      Washington first raised this issue in his motion for new trial by generally

complaining that unadmitted evidence had been considered by the jury (CR 253).

At the hearing on his motion for new trial, he offered the testimony of the

presiding juror, Melissa Rackel (7 RR 137-57). She testified that the exhibit

caused a juror to comment that after working in his position for almost 40 years,

people like Washington “tend to get old and cocky or arrogant, set in their ways,

and they don’t take care – or they don’t do their job the way they should because

they’ve been doing it this way for so long” (7 RR 139). She also testified that she

believed the exhibit had some impact on deliberations (7 RR 139:23-25).

      The question for this Court is whether the presence of the exhibit in the jury

room probably caused the rendition of an improper verdict. TEX. R. APP. P.

44.1(a); Country Village Homes, Inc. v. Patterson, 236 S.W.3d 413 (Tex.App.—

Houston [1st Dist.] 2007, pet. granted, judgm’t vacated w.r.m.); Mid-South Bottling

Co. v. Cigainero, 799 S.W.2d 385, 388 (Tex.App.—Texarkana 1990, writ denied).

Put another way, for the jury’s exposure to the exhibit to constitute reversible error,

this Court must determine that the jury’s verdict probably resulted directly from

the presence of the exhibit in the jury room. Id.

                                          29
      The record in this case does not support a conclusion that the exhibit in

question probably resulted in the rendition of an improper verdict. As discussed in

response to Washington’s first issue, the evidence in this case was very one-sided.

Washington offered the testimony of only a single witness, and her testimony was

brief and limited to the tolling of the statute of limitations for the causes of action

of minors (4 RR 218:18 – 221:6).           And in his own testimony (which the

Commission offered), Washington never directly refuted the evidence proving his

misconduct. Nor did he offer documentary evidence to refute the evidence against

him. In such a lopsided case, it is difficult to imagine that the jury would have

decided in Washington’s favor but for their consideration of a document showing

that his law license was suspended for fifteen days nearly nineteen years earlier as

a result of the non-payment of the attorney occupation tax and/or associated

penalties or interest.

      Moreover, the lack of any rational relationship between the prior

administrative suspension and the jury issues underscores the harmlessness of the

jurors’ awareness of the suspension. They were asked (1) whether Washington

neglected Mr. Gobert’s legal matter, (2) whether he failed to keep Ms. Carter and

Mr. Gobert reasonably informed, (3) whether he failed to comply with Ms. Carter’s

and Mr. Gobert’s reasonable requests for information, (4) whether he failed to

surrender papers to which Mr. Gobert was entitled, and (5) whether he engaged in

                                          30
conduct involving dishonesty, deceit, or misrepresentation (CR 137-45).           No

reasonable juror would conclude that because of a very brief nineteen-year-old

administrative suspension for non-payment of a tax and/or associated penalties or

interest, it is more likely that Washington committed these acts.

       The presiding juror’s testimony cannot change the utter lack of significance

of the information in question. The record simply does not support a conclusion

that the jury probably would have rendered a different verdict if they had not seen

Exhibit 1.

III.   Washington’s complaints regarding the jury charge are without merit
       because the charge properly tracked the language of the disciplinary
       rules and Washington failed to preserve his charge complaints.

       In his next issue, Washington complains about the jury charge. This Court

reviews a claim of charge error for an abuse of discretion. McIntyre v. Comm’n for

Lawyer Discipline, 247 S.W.3d 434, 443 (Tex.App.—Dallas 2008, pet. denied).

       A trial court has broad discretion in submitting jury questions (and even

more discretion when submitting jury instructions) as long as they fairly place the

disputed issues before the jury. Id. In a case of attorney discipline, the jury charge

should track the language of the disciplinary rules as closely as possible because

the disciplinary rules are treated like statutes. Bellino v. Commission for Lawyer

Discipline, 124 S.W.3d 380, 385 (Tex.App.—Dallas 2003, pet denied).




                                         31
      In this case, Washington complains that the trial court did not provide

adequate instructions to the jury. Appellant’s Br. 42-45. But as required, the jury

charge closely tracked the language of the disciplinary rules (CR 140-44). See

TEX. DISCIPLINARY RULES PROF’L CONDUCT R. 1.01(b)(1), 1.01(c), 1.03(a),

1.15(d), 8.04(a)(3). 7

      In addition, Washington has not shown that he submitted to the trial court

and the trial court refused any instruction(s) in substantially correct form. “Failure

to submit a definition or instruction shall not be deemed a ground for reversal of

the judgment unless a substantially correct definition or instruction has been

requested in writing and tendered by the party complaining of the judgment.” TEX.

R. CIV. P. 278. And a party must submit an objection to the jury charge in writing

or by dictating the objection to the court reporter before the court reads the charge

to the jury. TEX. R. CIV. P. 272. The failure to comply with these requirements

waives any error.        Sears, Roebuck & Co. v. Abell, 157 S.W.3d 886, 891-92

(Tex.App.—El Paso 2005, pet. denied). In this case, there is no record that

Washington (1) submitted substantially correct instructions or (2) made objections


7
  Washington argues that the charge should have asked about factual issues such as
whether Washington informed his clients about the trial setting, dismissal, and motion to
reinstate. Appellant’s Br. 43. However, the parties are entitled to have only controlling
issues submitted to the jury, and the factual issues identified by Washington are mere
evidentiary issues rather than controlling issues. See Collins v. Beste, 840 S.W.2d 788,
790 (Tex.App.—Fort Worth 1992, writ denied) (explaining that a controlling issue is one
that requires a factual determination to render judgment in a case).
                                           32
to the court’s charge on the record prior to the reading of the charge to the jury.

Thus, Washington waived his arguments regarding the charge.

      Washington’s arguments also hint at a complaint regarding the

Commission’s failure to put on expert testimony, but any such complaint is

misplaced.8 Expert testimony is not required in a disciplinary proceeding against

an attorney because a disciplinary proceeding is “‘not an attorney malpractice case

where the standard of care is at issue. Rather, [it] is a disciplinary proceeding

where the appropriate interpretation of the Rules of Conduct and a factual

determination of whether [the attorney's] conduct met or violated the Rules is at

issue.’” McIntyre, 247 S.W.3d at 447 (citation omitted).

IV.   The “cumulative error” doctrine is irrelevant because the jury’s verdict
      is based on compelling evidence of Washington’s misconduct rather
      than on error by the trial court.

      The doctrine of cumulative error allows a reviewing court to reverse a

judgment when the record shows a number of errors, “‘no one instance being

sufficient to call for a reversal, yet all the instances taken together may do so.’”

University of Tex. at Austin v. Hinton, 822 S.W.2d 197, 205 (Tex.App.—Austin

1991, no writ) (citation omitted). To show cumulative error, the complaining party

must show that the jury would have rendered a favorable verdict for that party but



8
  Washington’s questions during the hearing on his motion for new trial hinted at the
same complaint (7 RR 147:1 – 148:8).
                                         33
for the alleged errors. Rhey v. Redic, 408 S.W.3d 440, 462 (Tex.App.—El Paso

2013, no pet.).

      In this case, the verdict rests solidly on the evidentiary record. The evidence

of Washington’s professional misconduct was compelling. The Commission’s

witnesses testified convincingly that he not only failed to keep them informed

regarding the status of the lawsuit or provide them with their complete file but also

affirmatively misled them. And the documentary evidence left no room for doubt

about his neglect of the case. Washington offered nothing to directly refute the

compelling evidence presented by the Commission. As such, the record soundly

contradicts any notion that the jury would have rendered a verdict favorable to

Washington but for the alleged procedural errors that he has raised on appeal.

V.    The trial court did not abuse its broad sanctions discretion.

      Washington raises two complaints regarding his sanctions – that the trial

court erred by denying his request for the jury to impose sanctions and that the

sanctions are excessive. Neither complaint has merit.

      A. It is well settled that the trial court, not the jury, determines the
         appropriate sanction(s) for attorney misconduct.

      Even in a disciplinary case tried to a jury, “the trial court has broad

discretion to determine whether an attorney guilty of professional misconduct

should be reprimanded, suspended, or disbarred.” State Bar of Tex. v. Kilpatrick,

874 S.W.2d 656, 659 (Tex. 1994); State v. O’Dowd, 312 S.W.2d 217, 221 (Tex.
                                         34
1958).   “What is unmistakenly clear, and highly significant, is that when a

respondent attorney elects a jury trial, the jury may only render a verdict on

whether the attorney has committed acts of misconduct. The jury is not permitted

to determine sanctions.” In re Caballero, 441 S.W.3d 562 (Tex.App.—El Paso

2013, orig. proceeding).

      As Washington notes in his brief, the State Bar Act states that the Supreme

Court may not adopt a rule abrogating the right to a jury trial in a disbarment

proceeding. TEX. GOV’T CODE ANN. § 81.077(a) (West 2015). The rule that

delegates sanctions authority to the trial court does not conflict with § 81.077(a)

because it does not “abrogate” the right to a jury trial.           See TEX. RULES

DISCIPLINARY P. R. 3.09 (providing that the trial court determines sanctions if a

jury finds misconduct).

      § 81.077(a) should be construed according to its ordinary meaning, which

leads to the inevitable conclusion that it does not conflict with Rule 3.09. Jaster v.

Comet II Constr., 438 S.W.3d 556, 562-63 (Tex. 2014). To determine a term’s

ordinary meaning, dictionaries are a good starting point. Id. at 563. Black’s Law

Dictionary defines “abrogate” as “[t]o annul, cancel, revoke, repeal, or destroy; . . .

to repeal a former law by legislative act, or by usage.” 9             BLACK’S LAW

DICTIONARY 8 (6th ed. 1990). Merriam-Webster similarly defines “abrogate” as “to

9
  Black’s also notes that “abrogation” is distinct from “derogation, which implies the
taking away only some part of a law.” BLACK’S LAW DICTIONARY 8 (6th ed. 1990).
                                          35
end or cancel (something) in a formal or official way.” Merriam-Webster Online

Dictionary, http://merriam-webster.com/dictionary/abrogate (last visited Oct. 22,

2015).

      Clearly, then, Rule 3.09’s delegation of sanctions authority to the trial court

does not “abrogate” a respondent attorney’s right to a jury trial because it does not

annul, cancel, revoke, repeal, or destroy the right. To the contrary, the disciplinary

rules preserve the right to a jury trial regarding the occurrence of professional

misconduct.

      Hanners v. State Bar of Tex., 860 S.W.2d 903 (Tex.App.—Dallas 1993, writ

dism’d), does not support Washington’s position on this issue. It merely provides

that, pursuant to a prior version of the disciplinary rules, a respondent attorney was

entitled to a jury trial as provided for by the common law and the rules of civil

procedure. Id. at 910-11. Importantly, the Hanners court specifically noted that it

“found no provision of the State Bar Rules which disallows a jury under the facts

of this case.” Id. at 911. In the instant case, however, the current disciplinary rules

explicitly delegate sanctions authority to the trial court.         See TEX. RULES

DISCIPLINARY P. R. 3.09 (providing that the trial court determines sanctions if a

jury finds misconduct).




                                          36
       B. The sanctions in this case are not excessive in light of the seriousness
          of Washington’s misconduct and the egregious harm to his clients.

       Because the trial court has broad discretion to determine the appropriate

sanction(s) for attorney misconduct, a reviewing court must determine whether the

trial court acted without reference to guiding rules or principles.                Cire v.

Cummings, 134 S.W.3d 835, 838-39 (Tex. 2004); Olsen v. Comm’n for Lawyer

Discipline, 347 S.W.3d 876, 888 (Tex.App.—Dallas 2011, pet. denied). As long

as the record holds some evidence of probative and substantive character to

support the trial court’s action, no abuse of discretion can be shown. Continental

Cas. Co. v. Davilla, 139 S.W.3d 374, 378 (Tex.App.—Fort Worth 2004, pet.

denied).

       In determining sanctions for attorney misconduct, the trial court is to

consider the factors set forth in Rule 3.10 of the Texas Rules of Disciplinary

Procedure.10 Kilpatrick, 874 S.W.2d 659; Olsen, 347 S.W.3d 889. However, the

court need not find that every factor set forth in Rule 3.10 is implicated before

imposing even the most severe sanction – disbarment. Olsen, 347 S.W.3d 889.

10
   The factors set forth in Rule 3.10 are (1) the nature and degree of the attorney’s
misconduct, (2) the seriousness of and circumstances surrounding the misconduct, (3) the
loss or damage to clients, (4) the damage to the profession, (5) the assurance that those
who seek legal services in the future will be insulated from the type of misconduct found,
(6) the profit to the attorney, (7) the avoidance of repetition, (8) the deterrent effect on
others, (9) the maintenance of respect for the legal profession, (10) the conduct of the
attorney during the course of the disciplinary proceedings, (11) the trial of the case, (12)
other relevant evidence concerning the attorney’s personal and professional background,
and (13) the attorney’s disciplinary record. TEX. RULES. DISCIPLINARY P. R. 3.10.
                                            37
Moreover, even a single act of misconduct may be sufficient to support severe

sanctions. Kilpatrick, 874 S.W.2d 659; Olsen, 347 S.W.3d 889.

      In this case, the sanctions fall well short of disbarment. The trial court

actively suspended Washington’s law license for one year, imposed a three-year

probation, and ordered Washington to pay the Commission’s attorneys’ fees as an

ancillary sanction. The nature of the misconduct provides ample justification for

the sanctions.

      Washington neglected his clients’ lawsuit to such an extent that it was

dismissed for want of prosecution. And his clients remained unaware of the

dismissal for more than two years after the court of appeals affirmed it because

Washington led them to believe that their suit was still pending. In response to

direct questions from his clients regarding the status of the lawsuit, Washington

withheld the truth.

      The consequences to Washington’s clients were devastating. Not only did

they lose their cause of action, which was potentially worth hundreds of thousands

of dollars, they also suffered a severe emotional blow because of the nature of their

legal problems and Washington’s callous disregard of their interests. Under the

circumstances, the sanctions in this case do not reflect any abuse of discretion.




                                         38
                                       PRAYER

      Because the evidence provides ample support for the judgment and

Washington has failed to show reversible error, Appellees respectfully pray that

this Court affirm the judgment of the trial court in all respects.

                                        RESPECTFULLY SUBMITTED:

                                        LINDA A. ACEVEDO
                                        CHIEF DISCIPLINARY COUNSEL

                                        LAURA BAYOUTH POPPS
                                        DEPUTY COUNSEL FOR ADMINISTRATION

                                        CYNTHIA CANFIELD HAMILTON
                                        SENIOR APPELLATE COUNSEL

                                        OFFICE OF THE CHIEF DISCIPLINARY
                                        COUNSEL
                                        P.O. BOX 12487
                                        AUSTIN, TEXAS 78711-2487
                                        512.427.1350; 1.877.953.5535
                                        FAX: 512.427.4167


                                        /s/ Cynthia Canfield Hamilton
                                        CYNTHIA CANFIELD HAMILTON
                                        SENIOR APPELLATE COUNSEL
                                        STATE BAR OF TEXAS
                                        STATE BAR CARD NO. 00790419
                                        ATTORNEYS FOR APPELLEE




                                           39
                           CERTIFICATE OF COMPLIANCE

Pursuant to the Texas Rules of Appellate Procedure, the brief of the Commission
for Lawyer Discipline contains approximately 7,749 words, which is less than the
total words permitted by the TRAPs. Counsel relies on the word count of the
computer program used to prepare this brief.


                                       /s/ Cynthia Canfield Hamilton
                                       CYNTHIA CANFIELD HAMILTON
                                       SENIOR APPELLATE COUNSEL
                                       STATE BAR OF TEXAS


                              CERTIFICATE OF SERVICE

This is to certify that the above and foregoing brief of the Commission for Lawyer
Discipline has been served on Appellant, Mr. Craig A. Washington, by and
through his attorneys of record Mr. Michael A. Stafford, Ms. Katharine D. David,
Ms. Stacy R. Obenhaus, and Mr. John MacVane, Gardere Wynne Sewell LLP,
2000 Wells Fargo Plaza, 1000 Louisiana Street, Houston, Texas 77002, by
electronic service through this Court’s electronic filing service provider on the 23rd
day of October 2015.


                                       /s/ Cynthia Canfield Hamilton
                                       CYNTHIA CANFIELD HAMILTON
                                       SENIOR APPELLATE COUNSEL
                                       STATE BAR OF TEXAS




                                         40
                             No. 03-15-00083-CV
                              _______________

                       In the Court of Appeals
                       Third District of Texas
                           Austin, Texas
                              _______________

                         CRAIG A. WASHINGTON,
                                                     APPELLANT
                                    V.

                   COMMISSION FOR LAWYER DISCIPLINE,
                                                 APPELLEE
                           _______________

                   Appealed from the 335th District Court
                         Of Bastrop County, Texas
                Honorable George Gallagher, Judge Presiding
                              _______________

                     APPENDIX TO BRIEF OF APPELLEE
                   COMMISSION FOR LAWYER DISCIPLINE
                          _______________


LINDA A. ACEVEDO                          CYNTHIA CANFIELD HAMILTON
CHIEF DISCIPLINARY COUNSEL                SENIOR APPELLATE COUNSEL

LAURA BAYOUTH POPPS                       OFFICE OF THE CHIEF DISCIPLINARY
DEPUTY COUNSEL FOR ADMINISTRATION         COUNSEL

                                          P.O. BOX 12487
                                          AUSTIN, TEXAS 78711-2487
                                          512.427.1350; 1.877.953.5535
                                          FAX: 512.427.4167




                                     41
                                No. 03-15-00083-CV
                                 _______________

                            In the Court of Appeals
                            Third District of Texas
                                Austin, Texas
                                  _______________

                               CRAIG A. WASHINGTON,
                                                         APPELLANT
                                           V.

                       COMMISSION FOR LAWYER DISCIPLINE,
                                                     APPELLEE
                               _______________

                       Appealed from the 335th District Court
                             Of Bastrop County, Texas
                    Honorable George Gallagher, Judge Presiding
                                  _______________

                          APPENDIX TO BRIEF OF APPELLEE
                        COMMISSION FOR LAWYER DISCIPLINE
                               _______________

TO THE HONORABLE JUSTICES OF THE COURT OF APPEALS:

      Appellee, the Commission for Lawyer Discipline, submits the following

record excerpts in support of its brief:

APPENDIX 1:         Opinion of the Eighth Court of Appeals (affirming dismissal of
                    lawsuit for want of prosecution)




                                           42
Appendix 1
                                     COURT OF APPEALS
                                  EIGHTH DISTRICT OF TEXAS
                                       EL PASO, TEXAS

                                                   §
                                                                    No. 08-10-00021-CV
 IN THE INTEREST OF N.T.H.                         §
                                                                       Appeal from the
                                                   §
                                                                      9th District Court
                                                   §
                                                               of Montgomery County, Texas
                                                   §
                                                                   (TC# 06-09-09220-CV)
                                                   §

                                            OPINION

        This is an appeal from an order overruling a motion to reinstate a case after dismissal for

want of prosecution. Appellants, Michael LaPaul Gobert and Lance C.L. Black, representing the

interests of N.T.H., a minor child, raise one issue contending that the trial court abused its discretion

by not granting its motion to reinstate. We affirm.

                                          BACKGROUND

        N.T.H.’s mother owned a tract of land located in Montgomery County, Texas. On August

15, 2005, N.T.H.’s mother conveyed a deed to Appellee, Craig Bush, leaving him her property. In

return, N.T.H.’s mother received no consideration from Appellee for the conveyance.

        On September 21, 2006, Appellants filed suit to rescind and cancel the deed, alleging that

the deed was void as N.T.H.’s mother was mentally ill at the time of the conveyance and therefore

lacked the mental capacity to “execute, acknowledge and deliver the deed” to Appellee. Appellee

filed a general denial on November 22, 2006. Two-and-a-half years later, on April 22, 2009, the trial

court issued a docket control order. That order set the case for trial for October 5, 2009, and

instructed both parties to: (1) complete discovery 45 days before trial; (2) file an agreement for
mediation stating the name of an agreed mediator and the date of the same, 30 days before trial; (3)

file motions for continuance or settlement 20 days before trial; (4) file a list of exhibits, witnesses

and depositions; and (5) attend a pretrial hearing on October 2, 2009, and file any proposed jury

questions by that date. The docket control order further stated that failure to attend “PRE-TRIAL”

may result in case dismissal. Following the court’s order, Appellants never filed an agreement to

mediate, a motion for continuance or settlement, or a list of exhibits, witnesses or depositions. Nor

does the record reflect that discovery was completed. However, the record does show that

Appellants failed to attend the scheduled pretrial hearing and the trial. Consequently, on October

14, 2009, the trial court ordered the case dismissed for want of prosecution. Subsequently,

Appellants filed a motion to reinstate the case, alleging that counsel’s failure to attend pretrial and

trial was due to his participation in a criminal case on October 2, 2009, and October 5, 2009. The

trial court denied the motion.

                                             DISCUSSION

        In a single issue, Appellants contend that the trial court abused its discretion by denying their

motion to reinstate after dismissal for want of prosecution. Specifically, they contend that counsel’s

failure to appear at the pretrial hearing and later at trial “was not intentional or the result of conscious

indifference because he was in trial on a murder case . . . .” However, in reviewing the entire history

of the case, we discern no abuse of discretion in the trial court’s denial of their motion to reinstate.

                                           Standard of Review

        We review the trial court’s denial of a motion to reinstate for an abuse of discretion. Herrera

v. Rivera, 281 S.W.3d 1, 8 (Tex. App. – El Paso 2005, no pet.). A trial court abuses its discretion

when it acts in an arbitrary and unreasonable manner, or when it acts without reference to any

guiding rules or principles. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex.
1985).

         To determine whether a denial of a motion to reinstate constitutes an abuse of discretion, we

look to whether a party prosecuted its case with due diligence. Herrera, 281 S.W.3d at 8. When

reviewing whether a party has demonstrated a lack of diligence in prosecuting a claim, a trial court

may consider the entire history of the case, including the length of time the case was on file, the

extent of activity in the case, whether a trial setting was requested, and the existence of reasonable

excuses for delay. Bilnoski v. Pizza Inn, Inc., 858 S.W.2d 55, 58 (Tex. App. – Houston [14th Dist.]

1993, no pet.).

                                                Analysis

         In this instance, Appellants argue that counsel’s inability to attend the pretrial hearing and

trial was due to a scheduling conflict. Specifically, counsel alleges that he was not able to appear

because he was at jury selection and trial in another court, defending a murder case. Thus,

Appellants conclude that counsel’s failure to appear was neither intentional nor the result of

conscious indifference. See TEX . R. CIV . P. 165a(3) (providing for reinstatement of the case upon

finding “that the failure of the party or his attorney was not intentional or the result of conscious

indifference but was due to an accident or mistake or that the failure has been otherwise reasonably

explained”).

         However, in considering the entire history of the case, including, but not limited to, the length

of time the case was on file, the extent of activity in the case, whether a trial setting had been

arranged, and whether reasonable excuses for delay existed in order to determine whether

Appellants’ counsel was diligent in prosecuting its case, we note that: (1) this case was originally

filed in September 2006, and had been on file for over three years at the time it was scheduled to go

to trial; (2) there was no dispute that counsel received notice of the pretrial hearing and trial setting;
(3) the docket control order irrefutably stated that failure to attend pretrial may result in dismissal

of the case; and (4) prior to the trial setting, counsel failed to file any pretrial motions within stated

deadlines and failed to provide witness and deposition lists, proposed jury questions, or a list of

discovery exhibits as required by the control order. Appellants provide no explanation for these

omissions. Although they represent that counsel gave a reasonable explanation or excuse for his

failure to appear for the pretrial hearing and trial, the record reflects that no motion for continuance

was timely filed pursuant to the court’s docket control order or that the judge was ever informed of

the scheduling conflict. Appellants have failed to cite, and we have been unable to locate any case

law stating that the trial court abused its discretion by denying Appellants’ motion for reinstatement

under similar circumstances. Based on these facts we cannot conclude Appellants were diligent in

prosecuting the case. After carefully reviewing the entire record, we find no abuse of discretion in

the trial court’s denial of the motion for reinstatement after dismissal for want of prosecution. See

Fox v. Wardy, 234 S.W.3d 30, 33 (Tex. App. – El Paso 2007, pet. dism’d w.o.j.) (dismissal upheld

for failure to appear at pretrial); Garcia v. Mireles, 14 S.W.3d 839, 843 (Tex. App. – Amarillo 2000,

no pet.) (dismissal upheld for failure to appear at court-ordered mediation); Shook v. Gilmore &

Tatge Mfg. Co., 951 S.W.2d 294, 298 (Tex. App. – Waco 1997, writ denied) (dismissal upheld for

failure to appear due to the breakdown of a good calendaring system). Accordingly, Appellants’ sole

issue is overruled.

                                           CONCLUSION

        Having overruled Appellants’ issue, we affirm the trial court’s judgment.



                                                GUADALUPE RIVERA, Justice

October 6, 2010
Before Chew, C.J., McClure, and Rivera, JJ.
