Craig A. Washington v. Commission for Lawyer Discipline ( 2015 )

ACCEPTED
03-15-00083-CV
6529478
THIRD COURT OF APPEALS
AUSTIN, TEXAS
8/17/2015 4:22:27 PM
JEFFREY D. KYLE
CLERK
No. 03-15-00083-CV
01-14-00601-CV
_______________________________________________________
FILED IN
3rd COURT OF APPEALS
In the Third Court of Appeals AUSTIN, TEXAS
Austin, Texas 8/17/2015 4:22:27 PM
JEFFREY D. KYLE
_______________________________________________________
Clerk
CRAIG A. WASHINGTON
Appellant,
v.
COMMISSION FOR LAWYER DISCIPLINE
Appellees.
_______________________________________________________
Appeal from the District Court of Bastrop County 335th Judicial District,
Cause No. 29,123
_______________________________________________________
Brief of Appellant
_______________________________________________________
Michael A. Stafford Gardere Wynne Sewell LLP
Texas Bar No. 18996970 2000 Wells Fargo Plaza,
mstafford@gardere.com 1000 Louisiana Street
Katharine D. David Houston, Texas 77002
Texas Bar No. 24045749 Tel: 713.276.5500
kdavid@gardere.com Fax: 713.276.5555
Stacy R. Obenhaus
Texas Bar No. 15161570 COUNSEL FOR APPELLANT
sobenhaus@gardere.com CRAIG A. WASHINGTON
John MacVane
Texas Bar No. 24085444
jmacvane@gardere.com
ORAL ARGUMENT REQUESTED
Identity of Parties & Counsel
Respondent/Appellant: Appellate counsel:
Craig A. Washington Michael A. Stafford
Texas Bar No. 18996970
mstafford@gardere.com
Katharine D. David
Texas Bar No. 24045749
kdavid@gardere.com
Stacy R. Obenhaus
Texas Bar No. 15161570
sobenhaus@gardere.com
John MacVane
Texas Bar No. 24085444
jmacvane@gardere.com
Trial counsel:
Kevin M. Hall
Texas Bar No. 24041041
Attorney at Law
3333 Fannin Street, No. 105
Houston, Texas 77004
Brad Beers
Texas Bar No. 02041400
Attorney at Law
Beers Law Firm
5020 Montrose Blvd., Suite 700
Houston, Texas 77006
ii
Petitioner/Appellees: Appellate counsel:
Commission For Lawyers Discipline Cynthia Canfield Hamilton
Office of the Chief Disciplinary
Counsel
State Bar of Texas
Post Office Box 12487
Austin, Texas 78711
chamilton@texasbar.com
Trial counsel
Judith Gres DeBerry
Texas Bar No. 24040780
Assistant Disciplinary Counel
Rita S. Uribe Alister
Texas Bar No. 17614703
Office of the Chief Disciplinary
Counsel
State Bar of Texas
1414 Colorado, Suite 200
Austin, Texas 78701-1627
iii
Table of Contents
Page(s)
Identity of Parties & Counsel ............................................................................... ii
Index of Authorities............................................................................................viii
Statement of the Case ........................................................................................... xi
Statement Regarding Oral Argument............................................................... xii
Statement of Issues.............................................................................................. xiv
Statement of Facts ...................................................................................................1
 Mr. Washington’s representation of Michael Gobert...................................2
 Mr. Washington attempts to pass Mr. Gobert’s trial setting because
of a conflicting murder trial setting. ...............................................................3
 The Commission for Lawyer Discipline files a petition against Mr.
Washington.........................................................................................................6
 The parties introduce sharply conflicting evidence and theories at
trial. ......................................................................................................................7
• The parties introduce conflicting theories as to whether Mr.
Washington attended to his duties to Mr. Gobert. ..................................8
• The parties introduce conflicting evidence about Mr.
Washington’s efforts to keep his clients reasonably informed..............9
 The trial court improperly refuses to admit evidence of Mr.
Washington’s truthful character and allows evidence of a prior
administrative suspension into the jury room during deliberations.......11
 The trial court overrules Mr. Washington’s jury charge objections.........12
 The jury renders a verdict for the Commission and Mr.
Washington moves for a new trial. ...............................................................13
 The trial court denies Mr. Washington’s motion for new trial and
suspends his license to practice law for four years. ...................................15
Summary of Argument ........................................................................................16
iv
Argument ...............................................................................................................18
I. Standards of Review...................................................................................18
II. The trial court’s several errors require a new trial for
Mr. Washington on all issues of his alleged disciplinary
violations and the sanction imposed. ......................................................19
A. Mr. Washington is entitled to a new trial on the issue of
whether he violated the Disciplinary Rules. ................................19
1. The trial court harmfully abused its discretion by
refusing to admit any evidence of Mr. Washington’s
character for truthfulness when the Commission’s
accusations put Mr. Washington’s character in issue
and the Commission attacked Mr. Washington’s
credibility in numerous ways...............................................19
a. The trial court erred by refusing to allow Mr.
Washington to admit evidence of his good
character. .......................................................................21
b. Mr. Washington was entitled to introduce
evidence of his character for truthfulness to
rebut the Commission’s onslaught on his
credibility throughout the case..................................24
c. Refusing to allow Mr. Washington to present
character evidence led to the rendition of an
improper judgment because the trial hinged
upon Mr. Washington’s credibility and the
evidence the trial court excluded was both
overwhelming and compelling..................................26
i. The contradictory testimony and split
jury verdict demonstrate that this was a
close case in which evidence of Mr.
Washington’s character would probably
have swung the jury’s verdict. ........................28
v
ii. The compelling and overwhelming
nature of the character testimony that
Mr. Washington sought to introduce
also demonstrates that exclusion of this
evidence resulted in an improper
judgment.............................................................31
2. The trial court harmfully erred by denying Mr.
Washington’s motion for new trial after
inadmissible evidence of a prior suspension was
provided to the jury during deliberations..........................36
a. The trial court erred by providing the jury
with evidence of Mr. Washington’s prior
license revocation.........................................................38
b. This error was harmful as shown by the
juror’s testimony. .........................................................39
3. The trial court harmfully erred in overruling Mr.
Washington’s objections to the Commission’s
proposed jury charge because these instructions
provided no standard by which the jury could
evaluate Mr. Washington’s conduct. ..................................41
a. The trial court erred by overruling Mr.
Washington’s charge objections based upon
the lack of any meaningful standard to guide
the jury...........................................................................42
b. This charge error was harmful. .................................44
4. Even if any of the above errors could be considered
harmless—which is not the case—their cumulative
effect requires giving Mr. Washington a new trial. ..........45
B. Mr. Washington is entitled to a new trial on the issue of
his sanction. .......................................................................................46
1. The trial court harmfully erred in denying Mr.
Washington a jury trial on the issue of his sanction.........47
vi
2. The trial court imposed an excessive sanction. .................50
Prayer ......................................................................................................................51
Certificate of Service .............................................................................................53
Certificate of Compliance ....................................................................................53
vii
Index of Authorities
Page(s)
CASES
Columbia Rio Grande Healthcare, L.P. v. Hawley,
284 S.W.3d 851 (Tex. 2009)..................................................................18, 41, 44
El-Ali v. Carroll,
83 F.3d 414 (4th Cir. 1996)...............................................................................22
Fayzullina v. Holder,
777 F.3d 807 (6th Cir. 2015).............................................................................21
In the Matter of G.M.P.,
909 S.W.2d 198 (Tex. App.—Houston [14th Dist.] 1995, no writ).......21, 23
G.W. v. Texas Dep’t of Family & Protective Services,
No. 03-14-00580-CV, 2015 WL 658466
(Tex. App.—Austin Feb. 11, 2015, no pet.)...................................................47
Garcia v. Cent. Power & Light Co.,
704 S.W.2d 734 (Tex. 1986)..............................................................................30
Goldstein v. Comm'n for Lawyer Discipline,
109 S.W.3d 810 (Tex. App.—Dallas 2003, pet. denied).........................42, 44
Hanners v. State Bar of Texas,
860 S.W.2d 903 (Tex. App.—Dallas 1993, writ dism’d)........................48, 49
In the Matter of Humphreys,
880 S.W.2d 402 (Tex. 1994)..............................................................................21
Hyundai Motor Co. v. Rodriguez ex rel. Rodriguez,
995 S.W.2d 661 (Tex. 1999)..............................................................................42
Itani v. Ashcroft,
298 F.3d 1213 (11th Cir. 2002).........................................................................22
viii
Ivey v. State,
250 S.W.3d 121 (Tex. App.—Austin 2007)
277 S.W.3d 43 (Tex. Crim. App. 2009)...........................................................50
Jochec v. Clayburne,
863 S.W.2d 516 (Tex. App.—Austin 1993, writ denied).............................27
Mercedes-Benz Credit Corp. v. Rhyne,
925 S.W.2d 664 (Tex. 1996)..............................................................................18
Michael v. State,
235 S.W.3d 723 (Tex. Crim. App. 2007)...................................................25, 26
Nat’l Liab. & Fire Ins. Co. v. Allen,
15 S.W.3d 525 (Tex. 2000)................................................................................18
Padilla v. Gonzales,
397 F.3d 1016 (7th Cir. 2005)...........................................................................22
In re R.R.,
209 S.W.3d 112 (Tex. 2006)..............................................................................18
Ramirez v. Wood,
577 S.W.2d 278 (Tex. Civ. App.—Corpus Christi 1978) .............................27
Redinger v. Living, Inc.,
689 S.W.2d 415 (Tex. 1985)..............................................................................39
Smerke v. Office Equip. Co.,
138 Tex. 236, 158 S.W.2d 302 (1941)...............................................................45
State Bar of Texas v. Kilpatrick,
874 S.W.2d 656 (Tex. 1994)........................................................................18, 50
Tollett v. State,
799 S.W.2d 256 (Tex. Crim. App. 1990)...................................................39, 40
Trapnell v. Sysco Food Services, Inc.,
850 S.W.2d 529 (Tex. App.—Corpus Christi 1992),
aff’d, 890 S.W.2d 796 (Tex. 1994).....................................................................48
ix
Univ. of Texas at Austin v. Hinton,
822 S.W.2d 197 (Tex. App.—Austin 1991, no writ).....................................45
STATUTES
TEX. CRIM. PROC. CODE ANN. § ART. 56.03...........................................................49
TEX. GOV’T CODE ANN. 81.077..............................................................................47
TEX. GOV’T CODE ANN. § 74.042.............................................................................4
OTHER AUTHORITIES
U.S. CONST. AMEND. VII ........................................................................................48
TEX. CONST. ART. V. § 10........................................................................................48
TEX. R. APP. P. 44.1(a)(1) .................................................................................26, 27
TEX. R. CIV. P. 165a.....................................................................................5, 6, 9, 10
TEX. R. CIV. P. 216....................................................................................... xvi, 5, 48
TEX. R. CIV. P. 243...................................................................................................49
TEX. R. CIV. P. 281............................................................................................ xv, 38
TEX. R. EVID. 403.............................................................................................. xv, 39
TEX. R. EVID. 404(a)(1)(B) ........................................... xv, 11, 16, 20, 21, 22, 23, 24
TEX. R. EVID. 405(a) ................................................................................................24
TEX. R. EVID. 608...................................................................... xv, 11, 16, 20, 24, 26
BLACK’S LAW DICTIONARY 1163 (10th ed. 2014).................................................22
x
Statement of the Case
Nature of the case: Attorney discipline proceeding alleging
neglect, failure to keep clients informed,
failure to deliver documents to which clients
were entitled upon termination of
representation, and conduct involving
dishonesty, deceit, and misrepresentation.
Course of proceedings: Jury trial followed by trial to the bench on the
issue of the appropriate sanction.
Trial court disposition: Final judgment imposing a partially probated
suspension of four years, one of active
suspension, the remainder probated.
xi
Statement Regarding Oral Argument
This is an important case in which the Court should hear argument.
Craig Washington is a former United States Congressman and a paragon of
the Texas legal community who has practiced law for over forty years—
primarily as a criminal defense attorney. In this case, he received a partially
probated, four-year license suspension as a disciplinary sanction for
missing docket call in a civil matter because he was trying a murder case at
the time.
Several errors occurred during the jury trial in this case. The trial
court erroneously excluded all of the voluminous evidence of Mr.
Washington’s exemplary character and reputation, which in this close case,
very likely altered the jury’s verdict. The court also sent an exhibit that
both it and the parties agreed the jury should not see into the jury’s
deliberations—an error that the presiding juror testified influenced the
jury.
In addition, the trial court’s jury instruction provided no guidance
whatsoever on the elements necessary for the jury to make findings against
Mr. Washington. Questions from the jury during deliberations—and direct
testimony from the presiding juror—demonstrate the jury’s confusion.
xii
Finally, the trial court improperly denied Mr. Washington’s right to
have the jury assess punishment, including the nearly $25,000 in liquidated
attorneys’ fees that the Court ordered Mr. Washington to pay the
Commission for Lawyer Discipline.
Oral argument would likely aid this Court’s understanding of ways
in which the gravity of these errors require granting Mr. Washington a new
trial.
xiii
Statement of Issues
I.
Texas Rules of Evidence 404(a)(1)(B) and 608(a) permit a party to
introduce evidence of his good character when either (1) he is accused of
conduct involving “moral turpitude,” defined as actions involving
“dishonesty, fraud, deceit, [or] misrepresentation,” or (2) his
“character . . . for truthfulness has been attacked.”
In this case, the Commission for Lawyer Discipline alleged that Craig
A. Washington “engaged in conduct involving dishonesty, fraud, deceit,
and misrepresentation.” The Commission also accused Mr. Washington of
being deceitful throughout its case.
Given the Commission’s accusations and strategy to discredit Mr.
Washington, did the trial court err by excluding evidence of Mr.
Washington’s reputation for exemplary character in the Texas legal
community?
II.
In violation of Texas Rule of Civil Procedure 281, Texas Rule of
Evidence 403, the trial court’s own ruling, and the parties’ agreement, the
trial court mistakenly gave the jury prejudicial evidence that Mr.
Washington’s license to practice had previously been suspended. The jury
never received any explanation for this suspension before receiving
evidence of it during deliberations.
Did this error, either in isolation or in combination with the trial
court’s other errors, probably cause the rendition of an improper
judgment?
III.
The trial court’s charge simply recited disciplinary rules without
defining or giving context to the legal standards contained therein. These
instructions confused the jury, as established by the jury’s questions and
testimony from the presiding juror at a hearing on the motion for new trial.
xiv
Did the trial court err by overruling Mr. Washington’s objections to
these instructions?
IV.
Texas Rules of Disciplinary Procedure 3.06 and 3.08 and Texas Rule
of Civil Procedure 216 all dictate that Mr. Washington was entitled to a jury
trial on the sanction to be imposed against him.
Did the trial court err by refusing to allow a jury to determine Mr.
Washington’s sanction?
V.
During the sanction phase the Court heard voluminous evidence
from dozens of prominent Texas citizens and lawyers attesting to Mr.
Washington’s extraordinary character and capability as a lawyer.
In light of the evidence of Mr. Washington’s good character and the
myriad ways he benefits his community, did the trial court err by imposing
a partially probated four-year suspension of Mr. Washington’s license to
practice?
xv
Statement of Facts1
Because the reversible errors in Mr. Washington’s trial include
imposing an excessive sanction and excluding evidence of his good
character, an introduction to Mr. Washington’s long and prolific career is
appropriate.
 Appellant Craig A. Washington’s Background.
The appellant, Craig A. Washington, is a former United States
Congressman and a legend in the Texas legal community (see 1 CR 235-38).
This is not hyperbole. He has recently been praised by sitting United
States District Court Judges as “a warrior in and for the cause of justice” (1
CR 238), “by far one of the best trial lawyers [she] ha[s] ever seen” (1 CR
237), and “Texas’s improved version of Atticus Finch” (1 CR 235-36).
Mr. Washington has been practicing law in Texas since 1969, (see 8 RR
Exh. 1; .pdf p. 9). He has spent most of that time protecting the rights of
criminal defendants (see 3 RR 135:4-:7; 4 RR 8:18-:19; 7 RR 71:6-:14). Among
1“CR” means the Clerk’s Record, filed in this Court May 8, 2015.
“SCR” means the Supplemental Clerk’s Records, filed in this Court June 2, 2015 and
July 9, 2015. The record filed on June 2, 2015, is referred to as “1 SCR”; the volume filed
on July 9, 2015, is referred to as “2 SCR.”
“RR” means the Reporters Record. Citations to Volume 8 of the reporter’s record, which
contains the trial exhibits, provides a pinpoint citation number to both the exhibit cited
and the .pdf page number on which the exhibit appears.
1
others, Mr. Washington famously obtained an acquittal for Elroy Brown, an
inmate in the Huntsville prison accused of killing two wardens (1 CR 243).
To demonstrate that Brown acted in self-defense, Mr. Washington
“revealed systematic abuse at Huntsville Prison” (1 CR 243) and “prov[ed]
that the warden was a sadistic thug aided by the assistant warden”
(1 CR 236).
In another chapter of Mr. Washington’s storied career, he “refused
woefully inadequate federal fees in protest for fear that they would
deter . . . qualified attorneys from taking on hard cases” (1 CR 243). Rather
than accept the fees, he said, “I would rather accept nothing” (1 CR 243).
At Thurgood Marshall School of Law, where Mr. Washington taught
a course in child advocacy, a student once questioned his career of
self-sacrifice (7 RR 70:12-71:6). Mr. Washington responded, “I get up and
do what I do because I have a passion for it, because there are people’s
rights out there that need to be protected, and that’s my job” (7 RR 71:6-
:12).
 Mr. Washington’s representation of Michael Gobert.
This attorney discipline proceeding arises from Mr. Washington’s
representation of Michael Gobert in a real property dispute in Montgomery
2
County2 (1 CR 8). Mr. Gobert’s grandmother, Sherry Randle, originally
retained Mr. Washington (4 RR 142:23-143:6). Because Ms. Randle was a
family friend of Mr. Washington, he represented Mr. Gobert at a discount
and routinely saw Ms. Randle and took her calls without an appointment
(4 RR 131:18-132:9).
Mr. Washington took discovery and prepared Mr. Gobert’s case for
trial. Three depositions were conducted; Mr. Washington’s office
represented Mr. Gobert at each of them (4 RR 5-17). In addition, Mr.
Washington conducted other discovery and informally investigated the
claims (4 RR 18-19; 127:12-128:11).
 Mr. Washington attempts to pass Mr. Gobert’s trial setting
because of a conflicting murder trial setting.
The central disciplinary infraction in this case arises from Mr.
Washington’s handling of conflicting court settings. On the date set for
pretrial conference in the Gobert case, Mr. Washington was picking a jury
for a Harris County murder trial (see 8 RR P’s Exh 9, .pdf 23; 4 RR 34:13-
:21). Both pretrial conferences were set on the same Friday, and testimony
2 For convenience, the litigation in which Mr. Washington represented Mr. Gobert is
referred to in this brief as “the Gobert case” or “the Gobert litigation.” The court in
which that matter was pending is sometimes referred to as “the Gobert court.”
3
in the murder trial was to start the next Monday—the same day as Mr.
Gobert’s trial (4 RR 35:2-:3; 8 RR P’s Exh 9, .pdf 23).
Though these settings conflicted, Mr. Washington did not know if
either of the two cases would be called to trial because each case was
“among many cases set on those two dates” (4 RR 44:10-:15). In particular,
in the Harris County criminal court “[t]here may be 20 or 30 cases set” (4
RR 34:1).
Mr. Washington was prepared to try the Gobert case and the murder
case on the assigned trial settings, but wished to avoid losing either setting
if the other case was passed (4 RR 94:7-:13).
So, rather than continue the Gobert trial, Mr. Washington appeared
for docket call in the Harris County murder trial pursuant to a local rule
that gave criminal cases precedence over all others absent a specific
agreement to the contrary (8 RR P’s Exh 20, .pdf 104 (Second
Administrative Judicial Region of Texas Regional Rule of Administration
Rule 10.2.2.1); 4 RR 46:7-48:1).3 Had the murder case not been called to
3These local rules govern both Harris County and Montgomery County because both
are in the Second Administrative Judicial Region. See Tex. Gov’t Code Ann. § 74.042(c).
4
trial, Mr. Washington “would have left . . . and gone to the [Gobert court]
to see where he was on the list up there for the next week” (4 RR 95:3-:9).
As it happened, however, Mr. Washington picked a jury in the
murder case that very day and therefore knew that the murder trial would
certainly conflict with the Gobert case (4 RR 34:13-:23; see 4 RR 94:3-:6). At
that point, Mr. Washington’s office called the Gobert court to inform it of
the conflict (4 RR 35:18-36:3). Mr. Washington’s office also sent another
lawyer to the Gobert court to explain the situation (4 RR 35:23-36:3).
Mr. Washington also called opposing counsel in the Gobert case and
informed him that the conflicting murder trial would prevent going
forward with the Gobert trial (4 RR 54:5-:9).
In addition to calling the court and opposing counsel on the Friday of
the pretrial, the following Monday, when the trial was to begin, Mr.
Washington’s office again called the Gobert court to ensure that it had
passed the trial in accordance with the local rules (8 RR P’s Exh 18, .pdf 83).
At that point, with Mr. Washington in trial on a murder case, the
Gobert court informed his office—over the phone—that it would be
dismissing Mr. Gobert’s case for want of prosecution (id.). Though Texas
Rule of Civil Procedure 165a required the court to provide notice and a
5
hearing before dismissing the case, the court did neither (see 4 RR 102:4-
106:7; 8 RR R’s Exh. 2, .pdf 197). Instead, it dismissed Mr. Gobert’s case
without written notice to either party (4 RR 102:22-104:1; 8 RR P’s Exh 18,
.pdf 84).
Mr. Washington filed a verified motion to reinstate the case pointing
out that the conflicting trial setting had made it impossible for him to
attend Mr. Gobert’s trial (8 RR P’s Exh 18, .pdf 85-89). The Gobert court
denied the motion to reinstate, again without a hearing (8 RR P’s Exh 18,
.pdf 85-89). In doing so, the court again violated Texas Rule of Civil
Procedure 165a, which requires that a judge presented with a verified
motion to reinstate “set a hearing on the motion as soon as practicable” (4
RR 106:10-107:19).
Mr. Washington appealed the dismissal and the denial of his motion
to reinstate, but the El Paso Court of Appeals affirmed the trial court (8 RR
P’s Exh 17, .pdf 60-64).
 The Commission for Lawyer Discipline files a petition against
Mr. Washington.
The Commission for Lawyer Discipline (the “Commission”) then
filed a disciplinary petition against Mr. Washington alleging that he
6
violated the Texas Disciplinary Rules of Professional Conduct (the
“Disciplinary Rules”) by, among other things “neglect[ing] a legal matter
entrusted to [him]” and “engag[ing] in conduct involving dishonesty,
fraud, deceit or misrepresentation” (CR 9).
Mr. Washington demanded that a jury determine all factual issues in
the case, including the appropriate sanction, if any, for his conduct and the
amount of the Commission’s reasonable and necessary attorneys’ fees (1
CR 105). The trial court denied Mr. Washington’s request for a jury trial on
all aspects of his sanction (2 RR 4:16-5:25).
 The parties introduce sharply conflicting evidence and theories
at trial.
At trial, the Commission focused upon two bases to establish Mr.
Washington’s disciplinary violations. First, it argued that he had failed to
reasonably attend to Mr. Gobert’s case by missing docket call and trial.
Second, it contended that Mr. Washington had essentially lied to his
clients, Mr. Gobert and his grandmother, Sherry Randle, about the status of
the case, including the dismissal.
7
• The parties introduce conflicting theories as to whether Mr.
Washington attended to his duties to Mr. Gobert.
On the first point, Mr. Washington testified that he properly attended
to Mr. Gobert’s case by:
(1) conducting discovery and preparing for trial (see 4 RR 94:15-:17),
(2) attending the conflicting murder setting instead of Mr. Gobert’s
setting in accordance with the local rules,
(3) informing the Gobert court of the conflict by phone on two
occasions,
(4) informing opposing counsel of the conflict,
(5) sending a substitute attorney to the Gobert pretrial,
(6) moving to reinstate after the court improperly dismissed the case
for want of prosecution without notice or a hearing, and
(7) appealing the court’s ruling after it denied the motion to reinstate
(again while improperly denying Mr. Gobert his right to a
hearing) (see, generally 4 RR 81:14-114:2).
The Commission responded by attempting to impeach Mr.
Washington with various records reflecting that he had not called the court
on both occasions that he claimed (4 RR 36:15-37:4). The Commission also
suggested that Mr. Washington’s approach to the applicable local rules for
conflicting settings—informed by over forty years in practice—was
negligent (4 RR 45:7-49:18).
8
• The parties introduce conflicting evidence about Mr.
Washington’s efforts to keep his clients reasonably informed.
As to keeping his clients informed, Ms. Randle testified that
Mr. Washington never informed her that the district court had dismissed
Mr. Gobert’s case or that he had moved to reinstate the case (3 RR 44:11-
:21). Mr. Gobert similarly testified that Mr. Washington was often
unreachable (3 RR 144:24-145:14; 156:11-157:10), and that Mr. Washington
failed to inform him of the case’s dismissal (147:7-:13, 150:8-:12). Mr. Gobert
also said that Mr. Washington failed to inform him of his case’s trial setting
(4 RR 147:14-:16).
By contrast, Mr. Washington testified that he notified Ms. Randle
after he learned of the dismissal and before filing his motion to reinstate (4
RR 106:10-:13). While Mr. Gobert testified that Mr. Washington was
chronically unavailable, Mr. Washington himself testified that Ms. Randle
“had free access to [his] office” (4 RR 132:18-:24). Indeed, Ms. Randle was
one of “three or four clients in [Mr. Washington’s] life that could come over
whenever she wanted without an appointment” (id.).
Mr. Washington further testified that he never failed to return Ms.
Randle’s calls, allow her an appointment, or provide her copies of case
9
materials (4 RR 132:10-:23). As Mr. Washington explained, this
attentiveness came not just from his duty as a lawyer, but because “the case
was important to [him]” (id.). Mr. Washington similarly testified that when
Mr. Gobert—or other family members—called about the case, “[he] would
talk to them” (4 RR 133:13-:20).
Mr. Washington also directly rebutted the Commission’s allegation
that he lied about or concealed problems with the case, including that the
case had been dismissed and the dismissal appealed. Specifically, Mr.
Washington testified that “[f]rom day one,” he “told [Ms. Randle] what the
problems were” (4 RR 133:6-:12). And while Mr. Gobert testified that Mr.
Washington failed to inform him of the case’s trial setting, Mr. Washington
testified that he informed both Mr. Gobert and Ms. Randle in person (4 RR
50:7-:14).
As Mr. Washington’s counsel explained in closing, the case thus came
down to “a red light swearing match,” with Mr. Washington advancing
one version of events and his former clients advocating another (5 RR
12:17-:23).
Neither party introduced any expert testimony on the extent to which
Mr. Washington’s efforts to accommodate his conflicting settings, maintain
10
Mr. Gobert’s case on the docket, or obtain reinstatement discharged his
duties to Mr. Gobert. Instead, the jury—with no guidance from the trial
court’s charge—was left to determine these issues themselves.
 The trial court improperly refuses to admit evidence of Mr.
Washington’s truthful character and allows evidence of a prior
administrative suspension into the jury room during
deliberations.
Given the sharply conflicting testimony, Mr. Washington’s credibility
was at the forefront. As discussed in additional detail in the argument
portion below, Mr. Washington sought to introduce evidence of his
truthful character and outstanding reputation in the Texas legal
community under Texas Rules of Evidence 404(a)(1)(B) and 608(a) (see 4 RR
215:12-:21). The trial court sustained the Commission’s objections to this
evidence and excluded it (4 RR 217:8-:9, 229:3-:4).
While refusing to allow Mr. Washington to establish his exemplary
reputation through character evidence, the trial court inadvertently
introduced evidence undermining that reputation (see 7 RR 138:21-139:2).
Specifically, the jury was given evidence that Mr. Washington had
previously received an administrative license suspension even though the
Commission, Mr. Washington, and the trial court all agreed this
11
information should not go to the jury (see section, II.A.2., below). As this
evidence was admitted “for purposes of the record only,” it was never
explained to the jury.
 The trial court overrules Mr. Washington’s jury charge
objections.
In addition to the contested factual allegations, Mr. Washington also
objected to the Commission’s jury charge submissions because the
submissions “we[re] incomplete.” In support of this objection counsel for
Mr. Washington explained that “[t]he . . . law is clear . . . that there need[ ]
to be very specific definitions and instructions to the jury so that they
cannot come to a conclusion in an arbitrary manner” (2 RR 7:11-:16). The
instructions proffered by the Commission—and which the trial court
accepted—contained the following undefined phrases:
 “reasonably informed about the status of a matter”
(1 CR 141);
 “promptly comply with reasonable requests for
information” (1 CR 142); and
 “fail to surrender papers to which [a client] was entitled”
(1 CR 14)
The trial court overruled Mr. Washington’s objections and tendered
the Commission’s proffered instructions to the jury (2 RR 9:25-10:4).
12
The absence of definitions confused the jury, which sent notes
specifically requesting the definitions of portions of the Disciplinary Rules
cited in the charge (2 SCR 25). The jury also asked the trial court to define
“file” and to explain when the representation of Mr. Gobert “terminated,”
as that word was used in one question (1 CR 26, 32).
 The jury renders a verdict for the Commission and Mr.
Washington moves for a new trial.
Without expert testimony or detailed definitions to guide them, the
jury returned a verdict for the Commission (1 CR 137-45). The trial court
entered a judgment for the Commission suspending Mr. Washington’s
license for four years, with eighteen months active suspension and the
remainder probated (1 SCR 5).
Mr. Washington then filed a motion for new trial based upon:
 the factual insufficiency of the evidence;
 the erroneously admitted evidence of his suspension; and
 the improper jury instructions (1 CR 253-54).
At a hearing on Mr. Washington’s motion, the presiding juror
testified, without objection, on multiple issues. In particular, she testified
directly to the jury’s confusion regarding the Commission’s jury
13
instructions. According to the presiding juror, “the terminology, the
language, the lack of definitions was an issue” (7 RR 140:23-:25). She
testified that “[t]here was a general lack of knowledge and experience
throughout the jury about the legal process” and that the jury “did [not]
have any guidance on what the legal meaning of reasonably informed
meant or should mean in the context of the lawyer client relationship” (7
RR 140:15-:20, 143:2-:6).
Thus, the Commission’s jury questions, which required the jury to
apply undefined legal standards “made the process of deliberation and
reaching a verdict more difficult” (7 RR 140:2-:3). And “[the jury] didn’t
have enough information or enough definitions” (7 RR 143:22-:23). “As a
result, there [were] literally issues with the jurors not having enough
evidence or information to answer the questions” (7 RR 144:5-:9). In the
vacuum left by the absence of evidence and guidance, “speculation
occurred” (7 RR 145:2-:6).
The presiding juror also testified that the improperly admitted
evidence of Mr. Washington’s license suspension had influenced the jury’s
deliberations and created an unfavorable impression of Mr. Washington’s
competency to practice law and his age (see 7 RR 138:17-139:25).
14
Finally, the juror further underscored the close credibility issues in
the case by testifying that the jurors discussed whether Mr. Gobert
committed perjury during his testimony (7 RR 146:8-:25).
At the new trial hearing, Mr. Washington also presented more than
ten witnesses who testified to Mr. Washington’s exceptional character,
prowess as an attorney, and value to the community. In addition, over fifty
people, including Mr. Washington’s current and former clients, Texas
attorneys, judges before whom Mr. Washington had practiced, elected,
officials, community leaders, and others wrote letters in support of Mr.
Washington.
 The trial court denies Mr. Washington’s motion for new trial
and suspends his license to practice law for four years.
Notwithstanding the presiding juror’s testimony, the trial court
denied Mr. Washington’s motion for new trial—though it reduced the term
of his active suspension by six months (see 1 CR 319-23). Mr. Washington
timely appealed (1 CR 254).
15
Summary of Argument
Errors in the admission and exclusion of evidence in this case
combined with inadequate jury instructions to result in an improper
verdict.
The most obvious and harmful of these errors was the trial court’s
exclusion of voluminous evidence bearing upon Mr. Washington’s
character for truthfulness. This evidence was doubly admissible in this
case. First, the Commission’s allegation that Mr. Washington engaged in
“conduct involving dishonesty, fraud, deceit or misrepresentation” directly
put Mr. Washington’s character for truthfulness in issue and allowed him
to introduce evidence of his honest character under Texas Rule of Evidence
404(a)(1)(B). Second, the Commission attacked Mr. Washington’s
credibility as a witness throughout the trial, allowing him to introduce
evidence of his character for truthfulness under Texas Rule of Evidence
608(a). The exclusion of evidence establishing Mr. Washington’s character
gave the Commission a profound advantage in this contest of credibility
between Mr. Washington and the complaining witnesses.
The Commission gained a further advantage when the trial court
inadvertently gave the jury evidence of Mr. Washington’s previous license
16
suspension. Both the parties and the trial court agreed that this evidence
should not go the jury; its unexplained introduction tainted the jury’s
deliberations and besmirched Mr. Washington’s character and capabilities
as a lawyer.
The Court compounded these errors by failing to provide the jury
with meaningful standards for evaluating Mr. Washington’s conduct. The
trial court’s charge merely recited the Disciplinary Rules without
explaining in any way the meaning or normal scope of a lawyer’s
obligations to his client. The court’s charge left phrases like “reasonably
informed,” “promptly comply,” “reasonable requests for information,” and
“papers to which [Mr. Gobert] was entitled” undefined. For the untrained
lay jury the absence of definitions for these terms prevented meaningfully
addressing the factual issues in the case and unmoored the jury’s
deliberations from any factual standard.
The trial court also erroneously denied Mr. Washington his right to
have a jury evaluate his sanction and the sanction it imposed was
excessive.
17
Argument
I. STANDARDS OF REVIEW
The assigned errors in this case are reviewed for an abuse of
discretion as follows:
 The evidentiary ruling excluding Mr. Washington’s character
evidence (see Nat’l Liab. & Fire Ins. Co. v. Allen, 15 S.W.3d 525,
527-28 (Tex. 2000) (“On appeal, we review a trial court’s
evidentiary decisions by an abuse of discretion standard.”));
 The denial of Mr. Washington’s motion for new trial based
upon erroneously providing excluded evidence to the jury (In
re R.R., 209 S.W.3d 112, 114 (Tex. 2006) (“We review a trial
court’s denial of a motion for new trial for abuse of
discretion.”));
 The overruling of Mr. Washington’s charge objections
(Columbia Rio Grande Healthcare, L.P. v. Hawley, 284 S.W.3d 851,
856 (Tex. 2009) (“Determining necessary and proper jury
instructions is a matter within the trial court’s discretion, and
appellate review is for abuse of that discretion.”));
 The sanction imposed on Mr. Washington (State Bar of Texas v.
Kilpatrick, 874 S.W.2d 656, 659 (Tex. 1994) (“[T]he trial court has
broad discretion to determine whether an attorney guilty of
professional misconduct should be reprimanded, suspended, or
disbarred.”)); and
 The denial of Mr. Washington’s request for a jury
(Mercedes-Benz Credit Corp. v. Rhyne, 925 S.W.2d 664, 666 (Tex.
1996) (“We review the trial court’s denial of a jury demand for
an abuse of discretion.”)).
18
II. THE TRIAL COURT’S SEVERAL ERRORS REQUIRE A NEW TRIAL FOR
MR. WASHINGTON ON ALL ISSUES OF HIS ALLEGED DISCIPLINARY
VIOLATIONS AND THE SANCTION IMPOSED.
As discussed in additional detail below, the trial court made several
errors entitling Mr. Washington to a new trial on the issues of both liability
and the sanction imposed by the trial court.
A. Mr. Washington is entitled to a new trial on the issue of
whether he violated the Disciplinary Rules.
Mr. Washington is entitled to a new trial because the trial court
(1) erroneously excluded voluminous evidence of Mr. Washington’s
excellent character; (2) erroneously admitted evidence that Mr.
Washington’s license was previously suspended; and (3) erroneously failed
to meaningfully instruct the jury on the controlling law.
1. The trial court harmfully abused its discretion by refusing to
admit any evidence of Mr. Washington’s character for
truthfulness when the Commission’s accusations put Mr.
Washington’s character in issue and the Commission attacked
Mr. Washington’s credibility in numerous ways.
The trial court erred by excluding evidence of Mr. Washington’s
character for truth and veracity. Mr. Washington sought to introduce “a
series of . . . individuals . . . [who] would provide . . . testimony about Mr.
Washington’s character and reputation for truth and veracity, honesty and
plain dealing” (4 RR 228:14-:19). The Commission argued that such
19
evidence was inadmissible, but Mr. Washington countered that he was
entitled to introduce it for two purposes:
a. to defend against the Commission’s allegation that Mr.
Washington had engaged in “conduct involving dishonesty,
fraud, deceit or misrepresentation”4 (see 1 CR 114), Tex. R. Evid.
404(a)(1)(B)
and
b. to support his credibility following attack by the Commission,5
see Tex. R. Evid. 608(a).
The trial court accepted the Commission’s arguments and
erroneously excluded the evidence (see 4 RR 229:3-:4). Exclusion of this
evidence—which would have included a series of witnesses testifying to
Mr. Washington’s exemplary professional reputation and their high
opinions of his honesty and veracity (see 4 RR 228:14-229:1)—was harmful
error.
4 Mr. Washington’s trial counsel preserved this issue at 4 RR 215:12-216:16 (“Judge, my
position would be the allegations of dishonesty, deceit, misrepresentation are moral
turpitude.”).
5Mr. Washington’s trial counsel preserved this issue at 4 RR 216:22-:25 (“I think the bar
opened the door to [evidence of Mr. Washington’s truthful character] by attempting to
impeach Mr. Washington that he was lying and making claims and allegations
referencing [his failure to appear for docket call in the Gobert case].”).
20
a. The trial court erred by refusing to allow Mr.
Washington to admit evidence of his good
character.
Under Texas Rule of Evidence 404(a)(1)(B), “a party accused in a civil
case of conduct involving moral turpitude” may offer evidence of a
“pertinent character trait” notwithstanding the general prohibition on the
admission of character evidence.
In the context of Rule 404(a)(1)(B), “moral turpitude” means
“[c]rimes . . . that involve dishonesty, fraud, deceit, [or] misrepresentation.”
In the Matter of G.M.P., 909 S.W.2d 198, 208 (Tex. App.—Houston [14th
Dist.] 1995, no writ) (applying definition from attorney discipline cases to
Rule 404(a)(1)(B) evidentiary analysis); see also In the Matter of Humphreys,
880 S.W.2d 402, 408 (Tex. 1994) (“Generally, moral turpitude is implicated
by . . . dishonesty, fraud, deceit, misrepresentation, . . . or [actions] that
reflect adversely on a lawyer’s honesty, trustworthiness, or fitness as a
lawyer in other respects.”). Indeed, every Texas case that Mr. Washington
has found defining “moral turpitude”—in whatever context—has
concluded that the phrase implicates concepts of deceit and dishonesty. 6
6See, e.g., Fayzullina v. Holder, 777 F.3d 807, 813 (6th Cir. 2015) (“[C]rimes of making
deliberately dishonest statements involving material facts are inherently crimes
21
Black’s Law Dictionary is in accord, defining “moral turpitude” as
“[c]onduct that is contrary to justice, honesty, or morality.” BLACK’S LAW
DICTIONARY 1163 (10th ed. 2014).
The Commission’s allegation that Mr. Washington “engage[d] in
conduct involving dishonesty, fraud, deceit, or misrepresentation” (1 CR
114) unquestionably constituted an accusation involving moral turpitude
for purposes of Rule 404(a)(1)(B). In its disciplinary petition, the
Commission alleged that Mr. Washington engaged in “conduct involving
dishonesty, fraud, deceit or misrepresentation” (see 1 CR 114). This
allegation tracks verbatim the Disciplinary Rule that Mr. Washington
allegedly violated, which prohibits engaging in “conduct involving
dishonesty, fraud, deceit or misrepresentation.” See Tex. Disc. R Prof’l
Conduct 8.04(a)(3).
Even the Commission’s opening statement emphasized that its
accusations involved dishonesty, deceit, and misrepresentation. For
involving moral turpitude.”); El-Ali v. Carroll, 83 F.3d 414 (4th Cir. 1996) (collecting
cases); Itani v. Ashcroft, 298 F.3d 1213, 1215 (11th Cir. 2002) (“Generally, a crime
involving dishonesty or false statement is considered to be one involving moral
turpitude.”); Padilla v. Gonzales, 397 F.3d 1016, 1020 (7th Cir. 2005) (“Crimes that do not
involve fraud, but that include dishonesty or lying as an essential element also tend to
involve moral turpitude.” (Internal quotation marks omitted.)).
22
example, the Commission told the jury that “[Mr. Gobert and his
grandmother] were especially hurt by Mr. Washington’s dishonesty and
deceit, and the fact that he had misrepresented the status of the case to
them . . .” (3 RR 12:9-:14).
The Commission stressed to the jury, “[O]ur allegation is that Mr.
Washington . . . was dishonest with [his] clients” (3 RR 7:20-:23). It went on
to say that Mr. Washington “misrepresented facts to [his clients], and he
deceived them into believing something that wasn’t--that wasn’t what it
was” (3 RR 7:20-8:1). To wrap up, the Commission told the jury:
“[T]hroughout all of it, [Mr. Washington] was dishonest, deceitful, and
misrepresented everything about the status of this case” (3 RR 13:1-:5).
The language of the Commission’s accusation and argument
throughout this case are thus substantively identical to the definition of
moral turpitude applied in Matter of G.M.P., 909 S.W.2d at 208, and
elsewhere in Texas case law. In addition, the Commission indisputably
“accused [Mr. Washington] of conduct involving” dishonesty, deceit, and
misrepresentation, all of which have been held—many, many times—to be
hallmarks of the moral turpitude analysis. See Tex. R. Evid. 404(a)(1)(B).
23
The Commission’s accusations against Mr. Washington plainly
entitled Mr. Washington under Rule 404(a)(1)(B) to offer “evidence of [the]
pertinent character trait,” i.e., his honesty. See id. Texas Rule of Evidence
405(a) allowed Mr. Washington to prove his honest character “by
testimony as to reputation or . . . in the form of an opinion,” and the trial
court erred by denying Mr. Washington the opportunity to do so. As a
result, the Commission’s accusations in this case entitled Mr. Washington
to offer evidence of his character for truthfulness, and the trial court erred
by refusing to allow him to do so.
b. Mr. Washington was entitled to introduce evidence
of his character for truthfulness to rebut the
Commission’s onslaught on his credibility
throughout the case.
In addition to seeking to introduce evidence of his character for
truthfulness under Rule 404(a)(1)(B), Mr. Washington also should have
been allowed under Texas Rule of Evidence 608(a) to introduce character
evidence to rebut the Commission’s attacks on his truthfulness as a
witness.
Texas Rule of Evidence 608 provides that, “after the character of [a]
witness for truthfulness has been attacked,” the witness’s credibility “may
24
be . . . supported by evidence in the form of opinion or reputation.” “[T]he
question [to determine whether the door has been opened] is whether a
reasonable juror would believe that a witness’s character for truthfulness
has been attacked by cross-examination, evidence from other witnesses, or
statements of counsel (e.g., during voir dire or opening statements).”
Michael v. State, 235 S.W.3d 723, 728 (Tex. Crim. App. 2007).
In this case, the Commission mercilessly attacked Mr. Washington’s
character for truthfulness throughout its case—as it had to in order to
prove its accusation that he “engaged in conduct involving dishonesty,
fraud, deceit or misrepresentation.” For example, in its opening statement
the Commission argued that “throughout all of it, [Mr. Washington] was
dishonest, deceitful, and misrepresented everything about the status of this
case” (3 RR 13:1-:5).
In addition, throughout Mr. Washington’s direct examination, the
Commission attempted to contradict his testimony using his deposition
and various documents from his case file. These attacks were particularly
impactful with regard to Mr. Washington’s actions to alert the Gobert court
to Mr. Washington’s conflicting setting in the Harris County murder case
(see, e.g., 4 RR 31:1-19, 33:11-34:6; 35:18-37:4; 39:10-41:13; 39:16-42:23). The
25
Commission also attempted to portray Mr. Washington as a liar by casting
his interpretation of applicable rules as mere “claims” and “allegations”
fabricated from thin air to justify his actions (see 46:22-48:13). The
Commission further attacked Mr. Washington’s credibility by reading to
the jury from the appellate brief where opposing counsel in the Gobert case
contradicted Mr. Washington’s testimony that he had provided notice of
the conflicting settings (4 RR 66:24-67:25).
The attacks on Mr. Washington’s credibility, like the Commission’s
accusations involving moral turpitude, would have led “a reasonable juror
[to] believe that [Mr. Washington’s] character for truthfulness ha[d] been
attacked.” See Michael, 235 S.W.3d at 728. As a result, these attacks opened
the door to Mr. Washington admitting evidence of his character for
truthfulness. See Tex. R. Evid. 608.
c. Refusing to allow Mr. Washington to present
character evidence led to the rendition of an
improper judgment because the trial hinged upon
Mr. Washington’s credibility and the evidence the
trial court excluded was both overwhelming and
compelling.
A trial court’s error requires reversal on appeal if it “probably caused
the rendition of an improper judgment.” See Tex. R. App. P. 44.1(a)(1). The
26
analysis “require[s] [this Court] to review the entire record and grant a
reversal . . . if [it is] convinced that a different verdict would have been
rendered but for the error.” Ramirez v. Wood, 577 S.W.2d 278, 289 (Tex. Civ.
App.—Corpus Christi 1978); see also Jochec v. Clayburne, 863 S.W.2d 516, 522
(Tex. App.—Austin 1993, writ denied) (because “jury probably would have
reached a different verdict” absent error, error required reversal).
Given the close nature of this case, the focus on Mr. Washington’s
credibility, and the particularly strong character evidence that Mr.
Washington would have introduced, exclusion of the character evidence
was harmful. As a result, exclusion of Mr. Washington’s character
evidence probably led to the rendition of an improper judgment, and
requires reversal. See Tex. R. App. P. 44.1(a)(1); Jochec, 863 S.W.2d at 522.
27
i. The contradictory testimony and split jury
verdict demonstrate that this was a close case
in which evidence of Mr. Washington’s
character would probably have swung the
jury’s verdict.
This was essentially a three-witness trial.7 Mr. Washington testified
that he had taken diligent steps to inform the Gobert court of his conflicting
murder setting and had kept his clients reasonably informed. Mr. Gobert
and his grandmother, Ms. Randall, testified that Mr. Washington failed to
keep them informed.
The case was thus a he-said-she-said that turned on
Mr. Washington’s credibility. Mr. Washington testified that he was
prepared to go forward on the Gobert setting had he not been called to trial
in Harris County; in fact, a desire to maintain that Gobert setting motivated
his decision not to file a continuance (see 4 RR 94:7-:23). And, had he not
been set for a murder trial in Harris County, Mr. Washington testified that
he would have appeared for docket call in the Gobert case and obtained a
trail setting there (4 RR 95:3-:9).
7 A fourth witness, Sonya Heath, also testified, but the trial court limited her testimony
to the fact that the statute of limitations did not expire as to the claims of a minor child
in whose interest Mr. Gobert had also filed suit in the Gobert case (see 4 RR 219:16-
221:3). This testimony thus did not go the central issues in this case.
28
Mr. Washington testified that he contacted opposing counsel in the
Gobert case the day before pretrial (4 RR 95:14-96:9). He further testified
that his office contacted the Gobert trial court on that day and sent another
lawyer in Mr. Washington’s place (4 RR 35:18-36:3).
The Commission countered by introducing an appellate brief, filed
by opposing counsel in the Gobert appeal, that suggested Mr. Washington
failed to inform his opponent of the conflict (4 RR 66:25-67:6). It also argued
that an email Mr. Washington’s office sent the Monday after the Gobert’s
court Friday docket call proved that Mr. Washington did not attempt to
contact the court on the day of the docket call itself (4 RR 40:17-41:13).
Similarly, on the point of whether Mr. Washington adequately
informed Mr. Gobert and Ms. Randle, the parties offered dueling
narratives. Mr. Washington testified that he gave Ms. Randle a copy of the
case file whenever requested (4 RR 132:16-:23). Ms. Randle said that he did
at one time, but that she did not receive any documents after 2008 (3 RR
30:9-:25). Mr. Washington testified that he informed Ms. Randle about the
case—warts and all—whenever she asked (4 RR 131:18-134:11). Ms. Randle
testified that he failed to keep her informed of the case’s dismissal (3 RR
41:11-42:4). Mr. Washington testified that he informed both Mr. Gobert
29
and Ms. Randle of the case’s trial setting (4 RR 50:7-:14), Mr. Gobert
testified that Mr. Washington did not (4 RR 147:14-:16).
Given the contradictory nature of the testimony, it is unsurprising
that the jury struggled to reach a verdict. A small push in Mr.
Washington’s favor likely would have changed the outcome as shown by
the jury’s ten-to-two verdict and the testimony of the presiding juror. See
Garcia v. Cent. Power & Light Co., 704 S.W.2d 734, 737 (Tex. 1986) (“Given
these circumstances, and the ten-to-two verdict, we hold that this was a
hotly contested trial which resulted in a materially unfair trial as a matter
of law.”). In particular, the presiding juror testified that multiple jurors
were confused by the lack of information in the charge and questioned
whether Mr. Gobert had committed perjury. (7 RR 146:12-:20). Had the
Court properly allowed evidence of Mr. Washington’s good character into
this environment of confusion and distrust of the Commission’s witnesses,
the jury very likely would have decided differently.
In sum, given the limited and contradictory evidence, the
Commission gained a profound strategic advantage by keeping from the
jury Mr. Washington’s outstanding reputation with the legal community.
This exclusion created the misleading impression that Mr. Washington was
30
neglectful and untrustworthy, when his reputation could not have been
more to the contrary. In this close case, the skewed impression created by
the Court’s erroneous exclusion of Mr. Washington’s character for
truthfulness probably led to the rendition of an improper judgment against
Mr. Washington.
ii. The compelling and overwhelming nature of
the character testimony that Mr. Washington
sought to introduce also demonstrates that
exclusion of this evidence resulted in an
improper judgment.
When the trial court refused to admit Mr. Washington’s character
witnesses, Mr. Washington created a bill of exception demonstrating what
the testimony of the excluded witnesses would have been (4 RR 223:5-
228:12). The trial court heard testimony from only one witness in the bill of
exception, but it accepted the parties’ stipulation that, if permitted, Mr.
Washington “[would have] call[ed] a series of . . . individuals [who] would
[have] provide[d] substantially similar testimony about Mr. Washington’s
character and reputation for truth and veracity, honesty and plain dealing”
(see 4 RR 228:14-:24).
As it was, the one witness who testified for Mr. Washington’s bill of
exception delivered powerful and compelling testimony about Mr.
31
Washington’s outstanding reputation for veracity that—if presented to the
jury and echoed by a series of subsequent witnesses—almost certainly
would have changed the jury’s verdict.
Specifically, the witness testified that:
 “[P]eople in the community, attorneys and clients and regular
folks all have a very -- most everybody I know thinks highly of
[Mr. Washington]. Thinks highly of his integrity, his honesty,
veracity” (4 RR 226:17-:23);
 “All the lawyers [the witness] know[s], which . . . [is] several
hundred because of [her] career, all know [Mr. Washington]
and all have good things to say about him. . . . [I]n the
community he has a very good reputation [for truth and
veracity]” (4 RR 225:3-:8);
 “Mr. Washington’s character for truth and veracity” was
“[v]ery good. . . . [Mr. Washington was] the only type of
individual [the witness] chose to . . . surround herself with
[because of his character]” (4 RR 224:14-:18);
 “[Mr. Washington is] a very truthful, honest individual. . . . [the
witness] [n]ever hesitate[s] when he tells [her] something to
take it as the truth” (4 RR 224:23-225:2).
The parties stipulated that a series of other witnesses would have
delivered similarly effusive testimony about the reputation for honesty that
Mr. Washington developed over his more than forty years in practice (4 RR
228:14-229:1).
32
Thus, the jury returned its verdict without the benefit of the positive
character evidence that was admitted in the sanction phase of Mr.
Washington’s trial. This staggering outpouring of support for Mr.
Washington demonstrates the nature and extent of the witnesses who
would have established Mr. Washington’s reputation to the jury—had the
trial court properly permitted them to do so.
The witnesses who supported Mr. Washington during the sanctions
phase included:
 At least eight of Mr. Washington’s current and former clients
(see 7 RR 48-48, 79-82, 99-106; 1 CR 221, 226-29);
 Former Galveston County District Court Judge Susan Criss,
who described Mr. Washington’s reputation in Harris and
Galveston Counties as “Excellent” and said that he “set the
standard . . . on fighting for those who need us the most”
(7 RR 58:5-:14; 63:9-:14);
 The parole commissioner for the Texas Board of Parole and
Pardons (1 CR 220);
 The general counsel to the County Attorney of Harris County,
who has known Mr. Washington for forty-two years
(7 RR 24:24-25:1);
 Mr. Washington’s law partner of thirteen years, prior to Mr.
Washington’s election to the U.S. Congress (7 RR 35:21-36:5);
 A lawyer who officed with Mr. Washington for thirty-two years
(7 RR 13:19-:23);
33
 A former attorney in the Galveston County District Attorney’s
office for whom Mr. Washington was a mentor and second
father (7 RR 70:22-72:25);
 United States Congresswoman Eddie Bernice Johnson, who has
known Mr. Washington for forty years and attested that “Mr.
Washington is a man of great character, dignity, and ability”
(1 CR 241);
 Texas State Senator John Whitmire who remarked that “[Mr.]
Washington ha[d] dedicated his life to public service and
helping others” (1 CR 242);
 Texas State Senator Rodney Ellis who called Mr. Washington “a
court officer of the highest character” (1 CR 243);
 Harris County Commissioner El Franco Lee, who remarked
that he had “known and worked . . . with Mr. Washington well
over the past 40 years and kn[e]w well of his character and
work ethic, professional abilities and his sense of fairness”
(1 CR 244);
 Former National Football League player Michael Johnson
(1 CR 25);
 A former supervisor for the DEA and undercover officer in the
Harris County District Attorney’s office who had known Mr.
Washington for forty years (4 RR 84:19-85:12);
 Several other prominent attorneys and business people (see
1 CR 245-52).
In addition to these individuals who testified and wrote directly to
the Court on Mr. Washington’s behalf, other evidence established his
34
outstanding character and further demonstrated the overwhelming impact
of erroneously excluding this evidence. For example, Mr. Washington
introduced evidence that:
 United States District Court Judge Kenneth Hoyt, called Mr.
Washington “a warrior in and for the cause of justice” (1 CR
238);
 United States District Court Judge Lynn Hughes, who has
known Mr. Washington since the early 1970s, described him as
“Texas’s improved version of Atticus Finch” (1 CR 235-36);
 United States District Court Judge Vanessa Gilmore said that
“[h]e is by far one of the best trial lawyers [she] ha[s] ever
seen”.
The erroneous exclusion of character evidence this enormous in
scope and profound in character cannot be described as “harmless.” This
was a close case; the exclusion of Mr. Washington’s character evidence
created the misleading impression that he was a dishonest and aged solo
practitioner who neglected his client and then lied in an attempt to save his
license.
The testimony of the presiding juror established that the
Commission’s evidence—including certain material that by all accounts
should not have entered the jury room—created exactly this
misimpression. For example, at least one juror attributed Mr. Washington’s
35
“neglect” to his age, saying that “people like that” are often “old and cocky
or arrogant, set in their ways” (7 RR 139:8-:14). This juror also suggested
that people like Mr. Washington “don’t do their job the way they should
because they’ve been doing [it] this way for so long” (7 RR 139:8-:14).
Had the trial court properly allowed Mr. Washington to introduce
evidence of the esteem in which the shining stars of Texas’s legal
community held him, the jury almost certainly would have credited Mr.
Washington’s testimony over that of the complaining witnesses. The jury
could not have dismissed him as “old and cocky or arrogant” if it had
known that he was widely recognized as one of the most upstanding,
ethical, and talented members of the Texas bar.
The categorical exclusion of Mr. Washington’s character evidence
from the jury thus very likely resulted in rendition of an improper
judgment and requires granting Mr. Washington a new trial.
2. The trial court harmfully erred by denying Mr. Washington’s
motion for new trial after inadmissible evidence of a prior
suspension was provided to the jury during deliberations.
Near the beginning of the Commission’s case-in-chief, it sought to
introduce a certification reflecting Mr. Washington’s membership in the
36
Texas bar (see 3 RR 19-20; 8 RR Exh. 1, .pdf 9). Mr. Washington objected
based upon the following statement in the center of the document:
“The [Texas Supreme Court’s] records further show,
Craig A. Washington was suspended from the active rolls for
non-payment of the Texas Attorney Occupation Tax and/or
associated penalties or interest and was reinstated on the
following dates respectively:
SUSPENDED REINSTATEMENT GRANTED
April 01, 1996 April 16, 1996
(8 RR Exh. 1, .pdf 9).
Mr. Washington objected to this exhibit based upon “the very center
of the document” and “ask[ed] that that portion be redacted” (3 RR 20:3-:9).
Counsel for the Commission responded by agreeing that she “d[id]n’t
think the jury need[ed] to see it, frankly” (3 RR 20:17-:18). The trial judge
also agreed that this prejudicial material should be kept from the jury,
saying the document would be “admit[ted] for purposes of the record
only” (3 RR 20:19-:23).
But despite the trial court sustaining Mr. Washington’s objection and
ruling that the jury should not see the prejudicial and inadmissible
evidence of Mr. Washington’s prior license suspension, the exhibit was
nonetheless provided to the jury during deliberations (7 RR 138:21-139:2).
37
Allowing the jury to view this exhibit was harmful error, and the trial
court erred in denying Mr. Washington’s motion for new trial based upon
this evidence being provided to the jury (CR 253 (preserving issue of
improperly provided evidence in motion for new trial)).
a. The trial court erred by providing the jury with
evidence of Mr. Washington’s prior license
revocation.
Texas Rule of Civil Procedure 281 provides that “[w]here only part of
a paper has been read in evidence, the jury shall not take the same with
them, unless the part so read to them is detached from that which was
excluded.” In this case, the jury was given Commission’s Exhibit 1, a
certificate of good standing that reflected Mr. Washington’s suspension
from practice in 1996.
This plainly violated not only the trial court’s own ruling on the
exhibit, but also Texas Rule of Civil Procedure 281 which limits exhibits
that can be submitted to the jury to those to which they were exposed
during trial. None of the Commission’s certificate of good standing was
tendered to the jury during trial because everyone (including the Court and
the Commission) agreed that Mr. Washington’s suspension was irrelevant.
Because it was never admitted, it was also never explained. The
38
introduction of the prior suspension was highly prejudicial to Mr.
Washington.
Under these circumstances, allowing the jury to learn of Mr.
Washington’s prior suspension was error necessitating a new trial. See Tex.
R. Evid. 403.
b. This error was harmful as shown by the juror’s
testimony.
Absent an objection, the presiding juror’s testimony on the influence
of the erroneously admitted evidence of Mr. Washington’s suspension is
properly considered in this Court’s harmless error analysis. See Redinger v.
Living, Inc., 689 S.W.2d 415, 419 (Tex. 1985) (analyzing harmless error based
upon juror testimony); Tollett v. State, 799 S.W.2d 256, 257 (Tex. Crim. App.
1990) (“In this case, two jurors testified at a hearing on a motion for new
trial and described the jury’s deliberations. The two testifying jurors also
revealed some of the mental processes followed to arrive at the punishment
verdict. Although all or part of the juror testimony adduced at the Motion
for New Trial hearing may have been objectionable, no suitable objection
was lodged by the State and the evidence is now before us.”).
39
In this case, the Commission did not object to any of the presiding
juror’s testimony cited below, so this Court should consider that testimony
when determining the harmfulness of the erroneously admitted suspension
evidence.
Specifically, when asked how introduction of Mr. Washington’s
suspension impacted the deliberations, the presiding juror testified—
without objection—that the impact “was . . . stunning” (7 RR 139:5). The
juror explained that “as a result of [the suspension], a juror made a
stunning derogative statement regarding age and ability” (7 RR 139:3-:7).
Attempting to “be as close to verbatim as [she could],” the presiding juror
described a fellow juror’s opinion that the suspension was typical of
“people like [Mr. Washington]” who “tend to get old and cocky or
arrogant, set in their ways” (7 RR 139:8-:14).
The suspension, according to at least one member of the jury,
evidenced a broader perception that Mr. Washington, and people like him,
“don’t do their job the way they should because they’ve been doing it this
way for so long” (id.).
40
The presiding juror further testified that the issue of the suspension
came up both at the outset of deliberations and later, impacting
deliberations in the case (7 RR 15-:25).
Given the prejudice against Mr. Washington that the unexplained
evidence of suspension caused on the jury panel, introduction of that
evidence was not harmless. To the contrary, the admission of the
suspension evidence required a new trial and the trial court erred by failing
to grant one.
3. The trial court harmfully erred in overruling Mr.
Washington’s objections to the Commission’s proposed jury
charge because these instructions provided no standard by
which the jury could evaluate Mr. Washington’s conduct.
When considering charge error, “[this Court] must look at the court’s
charge as practical experience teaches that a jury, untrained in the law,
would view it.” Columbia Rio Grande Healthcare, L.P. at 862. “It asks too
much of lay jurors,” to distill complex legal concepts into an undefined
broad form submission. See id. Statements from lawyers as to the law do
not take the place of instructions from the judge as to the law. Id. It is
therefore the trial court’s prerogative and duty to instruct the jury on the
applicable law. Id. Thus, “the goal of the charge is to submit to the jury the
41
issues for decision logically, simply, clearly, fairly, correctly, and
completely.” Hyundai Motor Co. v. Rodriguez ex rel. Rodriguez, 995 S.W.2d
661, 664 (Tex. 1999).
The trial court’s careful execution of this task is particularly
important in lawyer discipline cases where, according to some appellate
courts, “interpretation of the disciplinary rules is a question of law for the
trial court, and therefore expert testimony is not required.” Goldstein v.
Comm'n for Lawyer Discipline, 109 S.W.3d 810, 815 (Tex. App.—Dallas 2003,
pet. denied). With the trial judge as the only expert in the room, a charge
that properly limits the jury to factual determinations—rather than
unbridled construction of the disciplinary rules—is essential.
a. The trial court erred by overruling Mr.
Washington’s charge objections based upon the lack
of any meaningful standard to guide the jury.
In this case, the trial court overruled Mr. Washington’s objection to a
charge that entirely failed to define the applicable legal standard by which
the jury was to evaluate Mr. Washington’s conduct (2 RR 9:25-10:4). For
example, the charge asked whether Mr. Washington kept Mr. Gobert and
Ms. Randle “reasonably informed about the status of a matter,” but
provided no legal measuring stick by which the jury could determine this
42
issue (1 CR 141). The untrained lay jury had no basis—nor did the
Commission provide one—by which to know what level of information
was reasonable.
The charge asked whether Mr. Washington “promptly complied with
reasonable requests for information” but provided no guidance as to what
was prompt and what was reasonable (1 CR 142). The jury was asked
whether Mr. Washington failed to surrender papers to which Mr. Gobert
“was entitled” at the “termination of [the] representation” (1 CR 143). How
the jury was to know what papers Mr. Gobert was entitled to is anyone’s
guess because neither the charge, the court, nor the Commission’s
witnesses provided any guidance whatsoever on this topic. Indeed, the
jury’s questions revealed that it could not even determine when the
representation terminated (2 CR 15).
Proper questions for the jury should have addressed the disputed
factual issues in the case, like whether Mr. Washington informed
Mr. Gobert and Ms. Randle about the upcoming trial setting, dismissal, and
motion to reinstate. The parties hotly disputed these factual issues, but the
questions submitted to the jury provide no basis whatsoever for
determining the findings of these issues. Instead, the responses reveal that
43
ten jurors believed that the information Mr. Washington provided about
Mr. Gobert’s case status—whatever that information was—was
“unreasonable”—whatever that means.
In this way, the questions submitted to the jury impermissibly and
inseparably mingled underlying factual disputes (on which the jury’s
findings were essential) with legal determinations (about which the jury
had no basis whatsoever to opine). It was the trial court’s duty to interpret
the Disciplinary Rules, see Goldstein, 109 S.W.3d at 815, not to tender them
to the jury without any context or testimony from which the jury could
reasonably determine their meaning.
Submitting instructions in this way prevented the jury from
meaningfully addressing the factual issues in the case and the trial court
therefore erred by overruling Mr. Washington’s charge objections.
b. This charge error was harmful.
Charge error is generally considered harmful if it relates to a
contested, critical issue. Columbia Rio Grande Healthcare at 856. In this case,
the presiding juror specifically testified—without objection—that the
instructions provided insufficient information and required the jury to
speculate in order to render its verdict (7 RR 144:23-145:6).
44
The presiding juror also explained—without objection—that had the
jury actually understood the determinations that it was called upon to
make “the outcome would have been different on several questions that
were asked of the jury” (7 RR 148:19-149:1). The presiding juror’s testimony
demonstrates that the jury did not understand the court’s charge, was
forced to speculate, and its verdict would have been different had it been
adequately instructed (see 7 RR 140:1-155:21). Under these circumstances,
the overruling of Mr. Washington’s objections to the charge was harmful.
4. Even if any of the above errors could be considered harmless—
which is not the case—their cumulative effect requires giving
Mr. Washington a new trial.
“The supreme court has long recognized the doctrine of cumulative
error.” Univ. of Texas at Austin v. Hinton, 822 S.W.2d 197, 205 (Tex. App.—
Austin 1991, no writ) citing Smerke v. Office Equip. Co., 138 Tex. 236, 158
S.W.2d 302, 305 (1941). Under this doctrine, “[a] reviewing court may
reverse a lower-court judgment under the cumulative-error doctrine when
the record shows a number of instances of error, no one instance being
sufficient to call for a reversal, yet all the instances taken together may do
so.” Id. (internal quotations omitted).
45
In this case, even if the Court determines that some of the errors
discussed above were harmless, their combined effect requires reversal. In
particular, the denial of Mr. Washington’s request to introduce character
evidence combined with the erroneous admission of the prior suspension
to create a profoundly misleading impression about Mr. Washington’s
credibility and capacity as a lawyer.
Rather than viewing Mr. Washington for his decades of service to
Texas’s most vulnerable litigants, the jury saw him as “old and cocky or
arrogant, [and] set in [his] ways” based upon the prior suspension (7 RR
139:8-:14). This stark misimpression created through the combination of
evidence erroneously admitted and erroneously excluded requires
granting Mr. Washington a new trial.
B. Mr. Washington is entitled to a new trial on the issue of his
sanction.
Mr. Washington is entitled to a new trial on the issue of the sanction
that the trial court imposed for two reasons. First, the trial court
improperly denied Mr. Washington his right to a jury on the issue of the
sanction as required by the Texas Rules of Disciplinary Procedure and the
46
Texas Rules of Civil Procedure. Second, the trial court’s sanction on Mr.
Washington was excessive.
1. The trial court harmfully erred in denying Mr. Washington a
jury trial on the issue of his sanction.
Mr. Washington expressly invoked his right to have a jury determine
his sanction, (1 CR 105; 2 RR 4:16-5:25), and the trial court erred in
overruling that request.
As this Court recently explained, the “right to a jury trial as
guaranteed by our Constitution is one of our most precious rights and the
denial of that right is a very serious matter.” G.W. v. Texas Dep't of Family &
Protective Services, No. 03-14-00580-CV, 2015 WL 658466, at *2 (Tex. App.—
Austin Feb. 11, 2015, no pet.) (internal quotation omitted). Thus,
“[r]estrictions placed on the right to a jury trial will be subjected to the
utmost scrutiny.” Id.
The sacrosanct status of the jury trial extends to attorney discipline
proceedings through several sources. The Government Code forbids the
adoption or promulgation of any rule abrogating the right to a jury trial by
an accused in a disbarment proceeding. See Tex. Gov’t Code Ann. 81.077.
The Supreme Court has also codified this requirement for all attorney
47
discipline actions in Texas Rule of Disciplinary Procedure 3.06. And Texas
Rule of Disciplinary Procedure 3.08 also mandates affording jury rights in
disciplinary proceedings. Under that rule, the Texas Rules of Civil
Procedure—and the broad jury right of the Texas Constitution
incorporated therein—8 the right to a jury applies in disciplinary
proceedings, absent some exception in the Rules of Disciplinary Procedure
themselves. See Tex. R. Civ. P. 216 (providing right to a jury trial when fee
paid).
As a result of the ample authority dictating the availability of a jury
trial to determine disciplinary sanctions, at least one court has held that
denial of a jury on this issue constituted error. See Hanners v. State Bar of
Texas, 860 S.W.2d 903, 910-11 (Tex. App.—Dallas 1993, writ dism’d). In
Hanners, an attorney in a disciplinary proceeding argued “that he was
entitled to a jury trial on the amount of restitution and attorney’s fees
ordered by the court because these amounts are unliquidated damages.” Id.
at 910.
8See Trapnell v. Sysco Food Services, Inc., 850 S.W.2d 529, 544 (Tex. App.—Corpus Christi
1992), aff’d, 890 S.W.2d 796 (Tex. 1994) (describing the right to a jury trial reserved to the
people in art. V. § 10 of the Texas Constitution as “significantly broader than that
granted in the Seventh Amendment.”).
48
The appellate court agreed, noting that Rule of Disciplinary
Procedure 3.08 expressly adopted the Rules of Civil Procedure and Texas
Rule of Civil Procedure 243 mandates a jury trial on issues of unliquidated
damages.9 Id. at 910-11. Thus, the court held that, even though the case
involved a default judgment, the attorney preserved his right to a jury trial
on the issue of the State Bar’s attorney’s fees by requesting a jury and
paying the proper fee. Id.
The mere fact that Rule of Disciplinary Procedure 3.10 states that “the
court” rather than the jury, “shall consider” certain factors in determining
sanctions does not change this result. Indeed, many limits exist on court
discretion that cannot be said to implicitly abrogate jury rights. For
example, the Code of Criminal Procedure imposes upon “the court” certain
sentencing obligations related to victim impact statements. See, e.g., Tex.
Crim. Proc. Code Ann. § art. 56.03. In particular, it requires that “[p]rior to
the imposition of a sentence . . . the court shall . . .consider the information
provided in the [victim-impact] statement.”
9 Texas Rule of Civil Procedure 243 provides that “[i]f the cause of action is
unliquidated or be not proved by an instrument in writing, the court shall hear
evidence as to damages and shall render judgment therefor, unless the defendant shall
demand and be entitled to a trial by jury in which case the judgment by default shall be
noted, a writ of inquiry awarded, and the cause entered on the jury docket.”
49
But no one would seriously argue that this requirement on the court’s
sentencing consideration implicitly abrogates the right of a criminal
defendant to have a jury determine punishment. See Ivey v. State, 250
S.W.3d 121, 124 (Tex. App.—Austin 2007), aff’d, 277 S.W.3d 43 (Tex. Crim.
App. 2009) (“It is well-established that a defendant’s right to have a jury
assess punishment is a statutory right . . . .”). Rather, like the factors
applicable to disciplinary sanctions, victim impact requirements inform the
court’s sentencing determination only when a jury does not determine
punishment.
In short, the Rules of Disciplinary Procedure dictate that a jury may
determine the scope of sanctions in a disciplinary proceeding by both
incorporating the Texas Rules of Civil Procedure and expressly saying so.
Mr. Washington requested that a jury determine his sanction in this case,
and the trial court erred in denying that request.
2. The trial court imposed an excessive sanction.
The sanction in a disciplinary proceeding may be so light, or so
heavy, as to constitute an abuse of discretion. Kilpatrick, 874 S.W.2d at 659.
And determining a sanction requires that the trial court consider, among
other factors, relevant evidence concerning the attorney’s personal and
50
professional background. See Tex. R. Disc. P. 3.10(L). Given the voluminous
evidence of Mr. Washington’s exemplary reputation, see section II.A.1.C.ii,
above, the trial court abused its discretion by imposing the suspension that
it did. Given Mr. Washington’s stellar reputation, the trial court’s four-year
suspension, including one year of active suspension and conditions on Mr.
Washington’s ability to practice like (1) the assignment of a “caretaker,” (2)
regular inspections of Mr. Washington’s office to ensure compliance, and
(3) the payment of $25,000 in attorneys’ fees for the Commission, was
excessive (1 SCR 4-11; CR 319-323).
Prayer
Craig A. Washington asks this Court to reverse the trial court’s
judgment and grant him a new trial along with any other relief to which he
has shown himself entitled.
51
Respectfully submitted,
/s/ Michael A.Stafford
Michael A. Stafford Gardere Wynne Sewell LLP
Texas Bar No. 18996970 1000 Louisiana, Suite 2000
mstafford@gardere.com Houston, Texas 77002
Katharine D. David Tel: 713.276.5500
Texas Bar No. 24045749 Fax: 713.276.5555
kdavid@gardere.com
Stacy R. Obenhaus COUNSEL FOR APPELLANT
Texas Bar No. 15161570 CRAIG A. WASHINGTON
sobenhaus@gardere.com
John MacVane
Texas Bar No. 24085444
jmacvane@gardere.com
52
Certificate of Service
I certify that this document was served on the following counsel on
August 17, 2015, through this court’s electronic filing/service system:
Cynthia Canfield Hamilton
Office of the Chief Disciplinary Counsel
State Bar of Texas
Post Office Box 12487
Austin, Texas 78711
chamilton@texasbar.com
/s/ John MacVane
John MacVane
Certificate of Compliance
I certify that this document contains 9,953 words, apart from those
parts of the brief excluded by Texas Rule of Appellate Procedure 9.4(i)(1). I
relied on the computer program used to prepare the document to
determine the number of words.
/s/ John MacVane
John MacVane
53
Gardere01 - 6916135v.4
Appendix A
Judgment of Partially Probated Suspension, signed January 8, 2015
(1 SCR 4-11)
A
Gardere01 - 6916135v.2
CAUSE NO. 29,113
COMMISSION FOR LAWYER § IN THE DISTRICT COURT OF
DISCIPLINE §
§
v. § BASTROP COUNTY, TEXAS
§
CRAIG A. WASHINGTON § 33Stb JUDICIAL DISTRICT
JUDGMENT OF PARTIALLY PROBATED SUSPENSION
Parties and Annearanee
On December 2, 3 and 4, 2014, the above-entitled and numbered case was called by the
Court with the Honorable George Gallagher presiding pursuant to his appointment by the
Supreme Court of Texas as set forth in Rule 3.02 of the Texas Rules of Disciplinary Procedure.
Petitioner, the Commission for Lawyer Discipline ("Petitioner"), appeared through counsel,
Judith Gres DeBerry, and announced ready. Respondent, Craig A. Washington ("Respondent"),
Texas Bar Number 20901000, appeared by and through his attorney of record, Kevin Hall, and
announced ready.
Jurisdidion and Venue
The Court finds that Respondent was an attorney licensed to practice law in Texas at the
time of the filing of this disciplinary cause ~>faction. The Court finds that it has jurisdiction over
i::'
the parties and the subject matter of this action and that venue is proper in Bastrop County, E c::
::J
0
(.)
Ln
Texas. c; IIllO.
~e
C"-1
a•
_...cg
Professional Miseonduet -z
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a:l..::.e
GlGi
Canneo
323
Appendix C
Charge of the Court, signed December 4, 2015
(CR 137-45)
C
Gardere01 - 6916135v.2
0 0
CAUSE NO. 28,381
COMMISSION FOR LAWYER § IN THE DISTRICT COURT OF
DISCIPLINE §
§
v. § BASTROP COUNTY, TEXAS
§
CRAIG A. WASHINGTON § 335th JUDICIAL DISTRICT
CHARGE OF THE COURT
LADIES AND GENTLEMEN OF THE JURY:
This case is submitted to you by asking questions about the facts, which you must decide
from the evidence you have heard in this trial. You are the sole judges of the credibility of the
witnesses and the weight to be given their testimony, but in matters of law, you must be
governed by the instructions in this charge. In discharging your responsibility on this jury, you
will observe all the instructions which have previously been given you. I shall now give you
additional instructions which you should carefully and strictly follow during your deliberations.
1. Do not let bias, prejudice or sympathy play any part in your deliberations.
2. In arriving at your answers, consider only the evidence introduced here under oath
and such exhibits, if any, as have been introduced for your consideration under
the rulings of the Court, that is, what you have seen and heard in this courtroom,
together with the law as given you by the Court. In your deliberations, you will
not consider or discuss anything that is not represented by the evidence in this
case.
3. Since every answer that is required by the charge is important, no juror should
state or consider that any required answer is not important.
4. You must not decide who you think should win, and then try to answer the
questions accordingly. Simply answer the questions, and do not discuss nor
concern yourselves with the effect of your answers.
5. You will not decide the answer to a question by lot or by drawing straws, or by
any other method of chance. Do not return a quotient verdict. A quotient verdict
means that the jurors agree to abide by the result to be reached by adding together
each juror's figures and dividing by the number of jurors to get an average. Do
not do any trading on your answers; that is, one juror should not agree to answer a
Scanned 137
0
certain question one way if others will agree to answer another question another
way.
6. Unless otherwise instructed, you may answer a question upon the vote of ten or
more jurors. If you answer more than one question upon the vote of ten or more
jurors, the same group of at least ten of you must agree upon the answers to each
of those questions.
These instructions are given to you because your conduct is subject to review the same as
that of the witnesses, parties, attorneys and the judge. If it should be found that you have
disregarded any of these instructions, it will be jury misconduct and it may require another trial
by another jury; then all of our time will have been wasted.
The presiding juror or any other who observes a violation of the court's instructions shall
immediately warn the one who is violating the same and caution the juror not to do so again.
Answer "'Yes" or "No" to all questions unless otherwise instructed. A "Yes" answer
must be based on a preponderance of the evidence unless otherwise instructed. If you do not find
that a preponderance of the evidence supports a "Yes" answer, then answer "No." The term
"preponderance of the evidence" means the greater weight and degree of credible evidence
admitted in this case. Whenever a question requires an answer other than ''Yes" or "No," your
answer must be based on a preponderance of the evidence unless otherwise instructed.
A fact may be established by direct evidence or by circumstantial evidence or both. A
fact is established by direct evidence when proved by documentary evidence or by witnesses
who saw the act done or heard the words spoken. A fact is established by circumstantial
evidence when it may be fairly and reasonably inferred from other facts proved.
After you retire to the jury room, you will select your own presiding juror. The first thing
the presiding juror will do is to have this complete charge read aloud and then you will deliberate
upon your answers to the questions asked.
138
0
It is the duty of the presiding juror:
1. to preside during your deliberations,
2. to see that your deliberations are conducted m an orderly manner and m
accordance with the instructions in this charge,
3. to write out and hand to the bailiff any communications concerning the case that
you desire to have delivered to the judge,
4. to vote on the questions,
5. to write your answers to the questions in the spaces provided, and
6. to certify to your verdict in the space provided for the presiding juror's signature
or to obtain the signatures of all the jurors who agree with the verdict if your
verdict is less than unanimous.
SIGNED at CJ:os o'clock .J!..m., this_!}_ day of~ 2014.
Honorabl eorge Gallagher
Specially Assigned Judge
139
0
1.0 l (b)(l)
QUESTION NO. 1
In representing Michael Gobert, did Craig A. Washington neglect a legal matter entrusted
to him?
You arc instructed that, for the purpose of this question, the term "neglect" signifies
inattentiveness involving a conscious disregard for the responsibilities owed to a client.
Answer "Yes" or "No."
Answer: \jc>
Source: Tex. Disciplinary R. of Prof'! Conduct; Tex. Gov't Code Ann., tit.2, subtit. G, app. A
(Vernon 2005).
140
1.03(a)
QUESTION NO. 2-A
Did Craig Washington fail to keep Michael Gobert reasonably informed about the status
of a matter?
Answer "Yes" or "No."
Answer: j£5
Did Craig Washington fail to keep Sherry (Randle) Carter reasonably informed about the
status of a matter?
Answer "Yes" or "No."
Answer: ~E5
Source: Tex. Disciplinary R. of Prof! Conduct; Tex. Gov't Code Ann., tit.2, subtit. G. app. A
(Vernon 2005).
141
l.03(a)
QUESTION NO. 2-B
Did Craig Washington fail to promptly comply with reasonable requests for information
from Michael Gobert?
Answer "Yes" or "No."
Answer: Y£ "::,.
Did Craig Washington fail to promptly comply with reasonable requests for infom1ation
from Sherry (Randle) Carter?
Answer "Yes" or "No."
Answer: 1£5
Source: Tex. Disciplinary R. of Prof! Conduct; Tex. Gov't Code Ann., tit.2, subtit. G, app. A
(Vernon 2005).
142
0
1.15(d)
QUESTION NO. 3
Upon the termination of Craig A. Washington's representation of Michael Gobert, did
Washington fail to surrender papers to which Michael Gobert was entitled?
Answer "Yes" or "No."
Answer: '}cS
Source: Tex. Disciplinary R. of Prof' I Conduct; Tex. Gov't Code Ann., tit.2, subtit. G, app. A
(Vernon 2005).
143
0
8.04(a)(3)
QUESTION NO. 4
Did Craig Washington engage in conduct involving dishonesty, deceit, or
misrepresentation?
Answer "Yes" or "No."
Answer: j ES
Source: Tex. Disciplinary R. of Profl Conduct; Tex. Gov't Code Ann., tit.2, subtit. G, app. A
(Vernon 2005).
144
0
CERTIFICATE
We, the jury, have answered the above and foregoing questions as herein indicated, and
herewith return same into court as our verdict.
(To be signed by the presiding juror ifthejury is unanimous.)
Signature of Presiding Juror
Printed Name of Presiding Juror
(To be signed by those rendering the verdict if the jury is not unanimous.)
Printed Name:
1. B~~ Coti:tt.S
2. ShetrOY\. lv.th~ r
3. )A&aJo I 6arwt1
:· Y:lrl~b;j;t;e~
6. ;JAy ~ J)cj -·----
7. uelfc....- '011
11. ___________________________ 11. ____________________________
Received in open court at~ o'clock..p_.m., this ~day of~.2014.
Honorabl eorge Gallagh
Specially Assigned Judge
145
Appendix D
Text of Texas Rule of Evidence 404
D
Rule 404. Character Evidence; Crimes or Other Acts
(a) Character Evidence.
(1) Prohibited Uses. Evidence of a person’s character or character
trait is not admissible to prove that on a particular occasion the person
acted in accordance with the character or trait.
(2) Exceptions for an Accused.
(A) In a criminal case, a defendant may offer evidence of
the defendant’s pertinent trait, and if the evidence is
admitted, the prosecutor may offer evidence to rebut
it.
(B) In a civil case, a party accused of conduct involving
moral turpitude may offer evidence of the party’s
pertinent trait, and if the evidence is admitted, the
accusing party may offer evidence to rebut it.
(3) Exceptions for a Victim.
(A) In a criminal case, subject to the limitations in Rule
412, a defendant may offer evidence of a victim’s
pertinent trait, and if the evidence is admitted, the
prosecutor may offer evidence to rebut it.
(B) In a homicide case, the prosecutor may offer evidence
of the victim’s trait of peacefulness to rebut evidence
that the victim was the first aggressor.
(C) In a civil case, a party accused of assaultive conduct
may offer evidence of the victim’s trait of violence to
prove self-defense, and if the evidence is admitted, the
accusing party may offer evidence of the victim’s trait
of peacefulness.
D
(4) Exceptions for a Witness. Evidence of a witness’s character may
be admitted under Rules 607, 608, and 609. (5) Definition of “Victim.”
In this rule, “victim” includes an alleged victim.
D
Appendix E
Text of Texas Rule of Evidence 608
E
Rule 608. A Witness’s Character for Truthfulness or Untruthfulness
(a) Reputation or Opinion Evidence. A witness’s credibility may be
attacked or supported by testimony about the witness’s reputation for
having a character for truthfulness or untruthfulness, or by testimony in
the form of an opinion about that character. But evidence of truthful
character is admissible only after the witness’s character for truthfulness
has been attacked.
(b) Specific Instances of Conduct. Except for a criminal conviction under
Rule 609, a party may not inquire into or offer extrinsic evidence to prove
specific instances of the witness’s conduct in order to attack or support the
witness’s character for truthfulness.
E
Appendix F
Text of Texas Rule of Civil Procedure 281
F
RULE 281. PAPERS TAKEN TO JURY ROOM
With the court’s permission, the jury may take with them to the jury room
any notes they took during the trial. In addition, the jury may, and on
request shall, take with them in their retirement the charges and
instructions, general or special, which were given and read to them, and
any written evidence, except the depositions of witnesses, but shall not
take with them any special charges which have been refused. Where only
part of a paper has been read in evidence, the jury shall not take the same
with them, unless the part so read to them is detached from that which was
excluded.
F
Appendix G
Text of Texas Rule of Disciplinary Procedure 308
G
3.08. Additional Rules of Procedure in the Trial of Disciplinary Actions:
In all Disciplinary Actions brought under this part, the following
additional rules apply:
A. Disciplinary Actions are civil in nature.
B. Except as varied by these rules, the Texas Rules of Civil Procedure
apply.
C. Disciplinary Actions must be proved by a preponderance of the
evidence.
D. The burden of proof in a Disciplinary Action seeking Sanction is on
the Commission. The burden of proof in reinstatement cases is upon the
applicant.
E. The parties to a Disciplinary Action may not seek abatement or delay
of trial because of substantial similarity to the material allegations in any
other pending civil or criminal case.
F. The unwillingness or neglect of a Complainant to assist in the
prosecution of a Disciplinary Action, or a compromise and settlement
between the Complainant and the Respondent, does not alone justify the
abatement or dismissal of the action.
G. It shall be the policy of the Commission to participate in alternative
dispute resolution procedures where feasible; provided, however, that
Disciplinary Actions shall be exempt from any requirements of mandatory
alternative dispute resolution procedures as provided by Chapter 154 of
the Civil Practice and Remedies Code or as otherwise provided by law.
G
Appendix H
Text of Texas Rule of Civil Procedure 216
H
RULE 216. REQUEST AND FEE FOR JURY TRIAL
a. Request. No jury trial shall be had in any civil suit, unless a written
request for a jury trial is filed with the clerk of the court a reasonable
time before the date set for trial of the cause on the non-jury docket,
but not less than thirty days in advance.
b. Jury Fee. Unless otherwise provided by law, a fee of ten dollars if in
the district court and five dollars if in the county court must be
deposited with the clerk of the court within the time for making a
written request for a jury trial. The clerk shall promptly enter a
notation of the payment of such fee upon the court's docket sheet.
H