Joseph R. Willie, II v. Commission for Lawyer

Affirmed and Memorandum Opinion filed March 17, 2015.
In The
Fourteenth Court of Appeals
NO. 14-13-00872-CV
JOSEPH R. WILLIE, II, Appellant
V.
COMMISSION FOR LAWYER DISCIPLINE, Appellee
On Appeal from the 165th District Court
Harris County, Texas
Trial Court Cause No. 2010-16861
MEMORANDUM OPINION
Attorney Joseph R. Willie, II, challenges a judgment suspending him from
the practice of law for twelve months. We affirm.
BACKGROUND
Willie represented his client, Don Collis Houston Jr., after Houston was
indicted for possession of a controlled substance and bail jumping. After
consulting with Willie, Houston signed a judicial confession and waiver of rights
as to both charged offenses on May 12, 2008; these documents also were signed by
Willie and the State’s attorney, Michael Mark. Houston then pleaded guilty to
both offenses in the trial court in the presence of Willie and Mark at a hearing on
May 12, 2008.
Mark introduced Houston’s judicial confessions and waivers of rights for
each offense into evidence at the hearing. The trial court asked Willie if he had
any objection to the admission; Willie stated that he had no objections; and the trial
court admitted the documents into evidence. The trial court asked Willie if he
wanted to present anything else on behalf of Houston, but Willie declined and only
asked the trial court to “have a PSI done and come back later for sentencing.”
The trial court held a punishment hearing on May 23, 2008, and sentenced
Houston to five years’ confinement for each offense. All proceedings in the trial
court relating to Houston were recorded by court reporter Jo Anne Leger.
Willie sent an email to Leger on June 5, 2008, stating: “I am in possession
of the originals from the Motion to Suppress Hearing and Motion for
Reconsideration Hearing, but the exhibits are not attached. I am forwarding the
originals to the Ninth Court of Appeals. Please forward the exhibits from those
hearings. Additionally, I need a court reporter’s record from the punishment
hearing, including all exhibits.”
Willie also filed a request for preparation of a reporter’s record on June 6,
2008, in which he asked for “the record from the suppression hearing and all
exhibits tendered and/or admitted at said hearing, the record from the
reconsideration hearing, and the record from the punishment hearing and all
exhibits tendered and/or admitted at said hearing.” In his request for a clerk’s
record, filed on June 6, 2008, Willie asked for numerous documents but he did not
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ask that Houston’s judicial confessions or waivers of rights be included.
Willie filed an appellate brief on September 4, 2008, in the Beaumont Court
of Appeals on behalf of Houston. The brief challenged Houston’s conviction for
possession of a controlled substance and bail jumping. Willie argued that legally
and factually insufficient evidence supported his client’s two convictions because
“[a]s remarkable as it may seem, the State never introduced the Defendant’s
judicial confession, written waiver of rights, the Presentence Investigation and/or
stipulations of evidence and the trial court did not admit same in the above-
referenced cause numbers.” The brief asked the court of appeals to reverse
Houston’s convictions as a result of the State’s failure to introduce evidence.
The State filed a motion to supplement the appellate record with items not
contained in the originally filed record because Willie had “failed to request the
entire record involving this case.” The State requested the entire clerk’s record and
all exhibits, “including but not limited to the stipulations of evidence and judicial
confessions from May 12, 2008,” and the reporter’s record of all hearings in the
case, including the May 12, 2008 plea hearing.
Willie filed a response to the State’s motion, stating that (1) he “does not
object to any proper supplementation of the appellate record;” (2) if the State
“wanted to complain about a matter that would not otherwise appear in the record,
the State had sixty (60) days from the pronouncement of sentence” to file a formal
bill of exceptions and cannot now be heard to complain when it chose not to file a
timely bill; and (3) court reporter Leger’s affidavit “does not state that there was a
Court Reporter’s Record made of the hearing held on May 12, 2008, and [Willie]
was never made aware that such a record existed.”
The Beaumont Court of Appeals issued an order on October 9, 2008,
directing the court reporter to prepare a complete record of the hearings and
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ordering the trial court clerk to prepare a supplemental record “containing any
documents executed for the guilty plea proceedings, including plea memoranda,
written admonishments, judicial confessions and written stipulations.”
After a complete record was filed in the court of appeals, the State filed a
brief on November 6, 2008, and stated as follows in its briefing: “This is an
unmitigated and blatant lie on the part of Appellant’s counsel and in fact
Appellant’s judicial confessions were indeed introduced into evidence in the
presence of Appellant’s counsel. . . . Appellant’s counsel was present when
Appellant entered his guilty pleas and when the appropriate documents were
introduced into evidence, and in fact, Appellant’s counsel even signed those
documents.”
Willie filed a reply brief on December 3, 2008, in which he withdrew the
issue challenging the sufficiency of the evidence to support Houston’s convictions.
The Beaumont Court of Appeals issued an opinion addressing other issues
Willie raised in the appellate brief. The court made the following statement with
regard to the sufficiency issue Willie had withdrawn in his reply brief:
In his opening brief, Houston argued in issue two that the
record contained legally or factually insufficient evidence to support
the convictions. Houston withdrew the issue in his reply brief, but the
State suggests counsel for the appellant represented in the opening
brief that certain events had not occurred in the proceedings below
when he knew the true facts to be otherwise. The brief for the
appellant stated “[a]s remarkable as it may seem, the State never
introduced the Defendant's judicial confession, written waiver of
rights, the Presentence Investigation and/or stipulations of evidence
into evidence and the trial court did not admit same in the above-
referenced cause numbers.” As was established through the filing of
supplemental records, this statement is incorrect.
Counsel for a party, through briefs and in any oral submission,
is expected to provide the Court a fair and accurate understanding of
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the facts and the applicable law, and must not misrepresent,
mischaracterize, misquote or miscite the facts or the law. The Court
has inherent power to enforce compliance with the rules, and take
appropriate action. Considering that the issue was withdrawn, and
after examining the briefs, the record before the Court, and the
procedural history in this case, the Court will not proceed further on
issue two.
Houston v. State, 286 S.W.3d 604, 612 (Tex. App.—Beaumont 2009, pet. ref’d).
Justice Horton wrote a concurring opinion stating: “I concur with the
court’s opinion to affirm the trial court’s judgment. However, I disagree with the
decision to not further address defense counsel’s false statements to this Court
regarding the trial court proceedings.” Id. at 614 (Horton, J., concurring). After
outlining Willie’s objectionable conduct before the court of appeals, Justice Horton
concluded that further proceedings were warranted to determine whether Willie
made misrepresentations to the court. Id. at 615. The Beaumont Court of Appeals
published the Houston opinion on May 27, 2009.
The Commission for Lawyer Discipline, a committee of the State Bar of
Texas, filed its original disciplinary petition on March 15, 2010, alleging that
Willie violated Texas Disciplinary Rules of Professional Conduct 3.01,
3.03(a)(1),(5), and 8.04(a)(3),(4). The Commission alleged that Willie “filed
Appellant’s Brief on September 4, 2008, stating in point of error number two that
the State failed to enter Houston’s judicial confessions into evidence. [Willie]
based his brief on the incomplete record he had filed with the Court. [Willie]’s
brief contained material omissions and misrepresentations of facts to the Court.”
Willie filed his original answer and counterclaims on May 19, 2010. Willie
asserted a claim for intentional infliction of emotional distress against the
Commission seeking monetary damages; he also asserted claims for civil
conspiracy and Equal Protection and Due Process violations under 42 U.S.C.A. §
5
1985(3) (West 2003) against the Commission seeking monetary damages and
attorney’s fees.
The trial court signed an order dismissing Willie’s counterclaims on
September 13, 2010.
The Commission filed its first amended disciplinary petition on October 29,
2012, alleging that Willie violated Texas Disciplinary Rules of Professional
Conduct 3.01, 3.03(a)(1), and 8.04(a)(3). In its petition, the Commission alleged
that Willie requested an incomplete record and then filed an appellate brief on
September 4, 2008, in which he contended in issue two that there was insufficient
evidence to support his client’s conviction because the State failed to enter his
client’s judicial confessions, among others, into evidence. The Commission
further alleged that “[i]t was thereafter established through the filing of
supplemental records, at the State’s request, that not only was this statement
incorrect, but [Willie] was present as Houston’s counsel when these documents
were admitted into evidence. [Willie]’s brief contained material omissions and
misrepresentation[s] of fact to the Court.”
Willie filed a counter-petition for declaratory judgment on May 13, 2013,
alleging that “[i]t is uncontroverted, undisputed and has been judicially admitted
by the [Commission] that the issues alleged by the [Commission] have been
adjudicated” in the Beaumont Court of Appeals Houston v. State opinion of May
27, 2009. Willie alleged that the Commission “literally ‘stands in the shoes’ of the
Complainant, Justice Hollis Horton, and the causes of action contained in its First
Amended Disciplinary Petition have already been litigated, found to be without
merit and are totally barred from being relitigated in this or any other forum.”
Willie requested that the trial court (1) issue a declaration that Texas Disciplinary
Rule of Professional Conduct 1.02(c) and comment 10 as well as comment 7 to
6
Texas Rule of Disciplinary Procedure 3.03 are “applicable to the facts of this
controversy;” (2) issue a declaration that the causes of action brought by the
Commission in its first amended disciplinary petition are barred by the doctrine of
res judicata and/or collateral estoppel; and (3) award reasonable attorney’s fees and
court costs.
The trial court signed an order denying Willie’s counter-petition for
declaratory judgment on May 21, 2013.
A two-day jury trial was held on May 21, 2013. The jury heard testimony
from Mark, Leger, and Willie. The parties also presented the jury with exhibits
relating to Willie’s representation of Houston in the trial court and in the Beaumont
Court of Appeals. The exhibits included Willie’s request for preparation of the
reporter’s record and his email to Leger requesting a reporter’s record of the
punishment hearing and exhibits; the appellate brief Willie filed on behalf of
Houston; Mark’s motion to supplement the record in the Houston appeal and
Willie’s response; the supplemental clerk’s record as well as the reporter’s record
for the plea and punishment hearings; the State’s brief; Willie’s reply brief
withdrawing issue two; and the Beaumont Court of Appeals opinion.
The jury answered the following three questions affirmatively:
QUESTION NO. 1
Do you find by a preponderance of the evidence that while
representing Don C. Houston, Jr. in matter Don C. Houston, Jr. vs.
The State of Texas, Joseph R. Willie II knowingly made a false
statement of material fact or law to the court?
You are instructed that, for the purpose of this question, the
term ‘knowingly’ denotes actual knowledge of the fact in
question. A person’s knowledge can be inferred from
circumstances.
You are also instructed that, for the purpose of this question, a
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statement is ‘material’ if it is one to which the judge would
attach importance and be induced to act on in making a ruling.
Answer ‘Yes’ or ‘No.’
Answer: Yes
QUESTION NO. 2
Do you find by a preponderance of the evidence that while
representing Don C. Houston, Jr. in matter Don C. Houston, Jr. vs.
The State of Texas, Joseph R. Willie II asserted or controverted an
issue in that proceeding in the absence of a reasonable belief that the
basis for doing so was not frivolous?
You are instructed that, for the purpose of this question, a filing
or contention is frivolous if it contains knowingly false
statements of fact.
Answer ‘Yes’ or ‘No.’
Answer: Yes
QUESTION NO. 3
Do you find by a preponderance of the evidence that Joseph R. Willie
II engaged in conduct involving dishonesty, fraud, deceit or
misrepresentation?
Answer ‘Yes’ or ‘No.’
Answer: Yes
The trial court “assess[ed] a one-year fully probated sentence as imposed,
attorneys’ fees as requested, costs of court in the amount of [$]778.16.”
Willie filed a motion for judgment notwithstanding the verdict on July 2,
2013, arguing that the trial court erred by “submitting the case to the jury, because
no material issue of fact was raised by the evidence.” Willie argued that the trial
court should (1) sign a judgment in Willie’s favor because issue two of the
Houston appellate brief was properly amended and withdrawn before the issue was
submitted to the Beaumont Court of Appeals, and the appellate court
“unambiguously stated” that issue two “would not be considered in the
8
adjudication of the appeal;” and (2) disregard the jury’s answers because issue two
of the Houston appellate brief was not presented to the Beaumont Court of Appeals
“for adjudication, thus the [Commission]’s causes of action were moot as a matter
of law.”
The Commission filed a response to Willie’s motion for judgment
notwithstanding the verdict on July 9, 2013, stating that Willie’s argument “only
addresses a single issue presented to the jury, identified as ‘Question No. 2.’” The
Commission argued that a judgment notwithstanding the verdict would be
improper because (1) the jury’s answer to Question No. 2 is supported by more
than a scintilla of evidence; (2) there is “no legal principle that precludes [the
Commission]’s recovery or the submission of Question No. 2 to the jury;” and (3)
“there is no evidence establishing a fact, as a matter of law, contrary to the jury’s
answer to Question No. 2.”
Willie filed a reply to the Commission’s response on July 10, 2013,
contending that the Commission “does not have a cause of action as a matter of
law.” According to Willie, there was no false statement presented to the appellate
court because the court of appeals gave Willie leave to amend and withdraw issue
two so that it was never considered by the court of appeals.
The trial court signed an order denying Willie’s motion for judgment
notwithstanding the verdict on July 29, 2013.
On the same day, the trial court signed a “Judgment of Fully Probated
Suspension.” In the judgment, the trial court stated that Willie “committed
professional misconduct as defined by Rule 1.06V” of the Texas Rules of
Disciplinary Procedure and violated Texas Disciplinary Rules of Professional
Conduct 3.01, 3.03(a)(1), and 8.04(a)(3). The trial court further stated that, after
hearing the evidence and argument and after considering the factors in Rule 3.10 of
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the Texas Rules of Disciplinary Procedure, the appropriate sanction is a fully
probated suspension from the practice of law for a period of 12 months. The trial
court imposed several terms of probation. The court ordered Willie to pay
“attorney’s fees and direct expenses” in the amount of $12,428.16, and stated that
“all amounts ordered herein are due to the misconduct of [Willie], [and] are
assessed as a [sic] part of the sanction in accordance with Rule 1.06(Y) of the
Texas Rules of Disciplinary Procedure.”
Willie filed a “Request For Findings Of Fact And Conclusions Of Law As
To The Denial Of [Willie]’s Counter-Petition For Declaratory Judgment” on
August 5, 2013.
On the same day, Willie filed a motion for new trial, alleging that (1) the
trial court erred by excluding his exhibits 15 through 18, and 38; (2) the trial court
erred by denying his counter-petition for declaratory judgment “without receiving
evidence;” and (3) legally and factually insufficient evidence supported the jury’s
findings.
The Commission filed a response to Willie’s motion for new trial on August
20, 2013, contending that (1) the trial court’s ruling on Willie’s counter-petition for
declaratory judgment is a ruling on a pretrial motion that does not “support a
request for new trial;” (2) there is sufficient evidence to support the jury answers;
and (3) Willie failed to show that the trial court’s exclusion of exhibits constitutes
an abuse of discretion, and the admission of Willie’s exhibits would have been
cumulative.
Willie filed a reply to the Commission’s response on August 21, 2013,
alleging that the Commission is confused regarding its burden of proof in this case.
On August 27, 2013, Willie filed a notice of past due findings of fact and
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conclusions of law. Willie filed a timely notice of appeal on September 28, 2013.
ANALYSIS
I. Failure to Issue Findings of Fact and Conclusions of Law
Willie argues in his first issue that the trial court erred by failing to file
findings of fact and conclusions of law “as to the denial of [his] Counter-Petition
for Declaratory Judgment.”
Under Texas Rule of Civil Procedure 296, when a party makes a proper and
timely request for findings of fact and conclusions of law and the trial court fails to
comply, harm is presumed unless the record affirmatively shows that the
requesting party was not harmed by their absence. Tex. R. Civ. P. 296; Watts v.
Oliver, 396 S.W.3d 124, 130 (Tex. App.—Houston [14th Dist.] 2013, no pet.)
(citing Tenery v. Tenery, 932 S.W.2d 29, 30 (Tex. 1996) (per curiam)); Rumscheidt
v. Rumscheidt, 362 S.W.3d 661, 665 (Tex. App.—Houston [14th Dist.] 2011, no
pet.). Findings of fact and conclusions of law must be requested within 20 days
after judgment, and if no findings and conclusions are filed, the requesting party
must file a notice of past due findings within 30 days of its original request. See
Tex. R. Civ. P. 296, 297. If the record shows that the failure to file findings of fact
and conclusions of law did not prevent the appellant from properly presenting his
case to the appellate court, error is not harmful. See Watts, 396 S.W.3d at 130
(citing Tenery, 932 S.W.2d at 30); Rumscheidt, 362 S.W.3d at 665.
Willie contends that the trial court’s failure to issue findings of fact and
conclusions of law constituted harmful error because he was “prevented from
properly presenting a case to the appellate court” as there are “two or more
possible grounds on which the trial court may have based its denial.” Willie
contends he would have to “guess what the trial court found unless the trial court’s
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findings are provided to him.”
After the final judgment was signed on August 2, 2013, Willie requested
findings of fact and conclusions of law pursuant to Rule 296 on August 5, 2013.
See Tex. R. Civ. P. 296. He also filed a notice of past due findings of fact and
conclusions of law on August 27, 2013. See Tex. R. Civ. P. 297. However, the
record shows that the failure to file findings of fact and conclusions of law in
response to Willie’s request did not prevent him from properly presenting his case
on appeal, and therefore any error is harmless.
Willie alleged in his counter-petition for declaratory judgment that “[i]t is
uncontroverted, undisputed and has been judicially admitted by the [Commission]
that the issues alleged by the [Commission] have been adjudicated” in the
Beaumont Court of Appeals Houston v. State opinion of May 27, 2009, and found
to be without merit. Willie requested that the trial court issue a declaration that (1)
Texas Disciplinary Rule of Professional Conduct 1.02(c) and comment 10 as well
as comment 7 to Texas Rule of Disciplinary Procedure 3.03 are “applicable to the
facts of this controversy;” and (2) the causes of action brought by the Commission
against him are barred by res judicata and/or collateral estoppel. Although the
order did not specifically state why the trial court denied Willie declaratory
judgment, it is clear from Willie’s counter-petition that denial was based on a
determination that the cited Rules were inapplicable and a determination that the
Commission’s causes of action were not barred by res judicata and/or collateral
estoppel. Willie could have addressed either ground in his appellate brief.
Accordingly, we conclude that Willie was not harmed by the trial court’s
failure to file findings of fact and conclusions of law in response to his requests.
See Rumscheidt, 362 S.W.3d at 665–66; Alsenz v. Alsenz, 101 S.W.3d 648, 652
(Tex. App.—Houston [1st Dist.] 2003, pet. denied).
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We overrule Willie’s first issue.
II. Declaratory Judgment
In his second issue, Willie states that the trial court erroneously denied his
motion for new trial because it “sustained [the Commission]’s special exceptions
and dismissed [his] Counter-Petition for Declaratory Judgment;” however, Willie
does not present any further argument regarding this contention.1 Willie argues
that “the trial court did not have the authority to dismiss [his] Counter-Petition for
Declaratory Judgment without allowing [him] an opportunity to amend his
pleadings to cure a perceived defect,” which probably caused the rendition of an
improper judgment. Willie also argues that “it is undisputed and uncontroverted
that if the cause of action, as pled in [Willie]’s Counter – Petition for Declaratory
Judgment, were adjudicated, by either the jury or the trial court in [his] favor, the
controversy giving rise to the proceeding most certainly would have been
terminated.”
Under the Uniform Declaratory Judgments Act (UDJA), “[a] court of record
within its jurisdiction has power to declare rights, status, and other legal relations
whether or not further relief is or could be claimed.” Tex. Civ. Prac. & Rem. Code
Ann. § 37.003(a) (Vernon 2015). The UDJA’s purpose is “to settle and to afford
1
In this issue, Willie also argues that the “trial court abused its discretion in failing to
correctly apply the [Harris County] local rules when it sustained [the Commission]’s special
exceptions, which probably caused the rendition of an improper judgment,” because the
Commission was required under the local rules to (1) confer with Willie before filing special
exceptions; (2) “obtain a timely hearing to present its special exceptions to the trial court;” and
(3) “allow [Willie] time to file a written response and/or cure any defect before the hearing.
Willie asserts that, because he “asked for [Texas Disciplinary] Rules [of Professional Conduct]
1.02(c) and 3.03 cmt.7 to be declared applicable under the Uniform Declaratory Judgment Act”
and “[s]ince evidence was presented at trial that supported the application of these rules, the trial
court erred in dismissing [his] Counter-Petition for Declaratory Judgment.” Because Willie
failed to make these arguments in the trial court, we need not address them on appeal. See Tex.
R. App. P. 33.1.(a).
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relief from uncertainty and insecurity with respect to rights, status, and other legal
relations.” Id. § 37.002(b) (Vernon 2015). “A person interested under a deed,
will, written contract, or other writings constituting a contract or whose rights,
status, or other legal relations are affected by a statute, municipal ordinance,
contract, or franchise may have determined any question of construction or validity
arising under the instrument, statute, ordinance, contract, or franchise and obtain a
declaration of rights, status, or other legal relations thereunder.” Id. § 37.004(a)
(Vernon 2015).
A declaratory judgment is appropriate when a real controversy exists
between the parties, and the entire controversy may be determined by judicial
declaration. Adams v. First Nat’l Bank of Bells/Savoy, 154 S.W.3d 859, 873 (Tex.
App.—Dallas 2005, no pet.); Scurlock Permian Corp. v. Brazos Cnty., 869 S.W.2d
478, 486 (Tex. App.—Houston [1st Dist.] 1993, writ denied). To constitute a
justiciable controversy, there must exist a real and substantial controversy
involving a genuine conflict of tangible interests and not merely a theoretical
dispute. Scurlock, 869 S.W.2d at 487. A trial court may refuse to sign a
declaratory judgment if the judgment will not terminate the uncertainty or
controversy giving rise to the proceeding. Id. at 486. A party cannot use the
UDJA to settle disputes already pending before the court. BHP Petroleum Co. v.
Millard, 800 S.W.2d 838, 841 (Tex. 1990) (orig. proceeding).
Willie provides no argument to support his assertion that the trial court’s
dismissal of his “Counter-Petition for Declaratory Judgment without allowing
[him] an opportunity to amend his pleadings to cure a perceived defect” probably
caused the rendition of an improper judgment in this case. See Tex. R. App. P.
44.1.(a)(1). Nor does Willie state how he would have amended his pleadings to
prevent “dismissal” of his counter-petition had he been given the opportunity.
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Further, in his counter-petition for declaratory judgment, Willie requested a
declaration that (1) Texas Disciplinary Rules of Professional Conduct 1.02(c) and
3.03 cmt.7 “are applicable to the facts of this controversy.” Rule 1.02(c) provides:
A lawyer shall not assist or counsel a client to engage in conduct that
the lawyer knows is criminal or fraudulent. A lawyer may discuss the
legal consequences of any proposed course of conduct with a client
and may counsel and represent a client in connection with the making
of a good faith effort to determine the validity, scope, meaning or
application of the law.
Tex. Disciplinary Rule Prof’l Conduct R. 1.02(c), reprinted in Tex. Gov’t Code
Ann., title 2, subtit. G, app. A (Vernon 2013). Comment 7 to Rule 3.03 provides:
It is possible, however, that a lawyer will place testimony or other
material into evidence and only later learn of its falsity. When such
testimony or other evidence is offered by the client, problems arise
between the lawyer’s duty to keep the client’s revelations confidential
and the lawyer’s duty of candor to the tribunal. Under this Rule, upon
ascertaining that material testimony or other evidence is false, the
lawyer must first seek to persuade the client to correct the false
testimony or to withdraw the false evidence. If the persuasion is
ineffective, the lawyer must take additional remedial measures.
Tex. Disciplinary Rule Prof’l Conduct R. 3.03 cmt. 7, reprinted in Tex. Gov’t
Code Ann., title 2, subtit. G, app. A (Vernon 2013).
There is no “real and substantial controversy involving a genuine conflict
of tangible interests” in this case that a declaration regarding the applicability of
Rule 1.02(c) and Comment 7 to Rule 3.03 would have “settled” or “terminated.”
Nor would “the entire controversy . . . be determined by [a] judicial declaration” in
this case. See Scurlock, 869 S.W.2d at 486-87 (“A trial court may refuse to render
or enter a declaratory judgment if the judgment will not terminate the uncertainty
or controversy giving rise to the proceeding.”). Here, the controversy centers
around whether Willie violated Texas Disciplinary Rules of Professional Conduct
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3.01, 3.03(a)(1), and 8.04(a)(3) by knowingly making a false statement of material
fact or law to the court; asserting or controverting an issue in the absence of a
reasonable belief that the basis for doing so was not frivolous; and engaging in
conduct involving dishonesty, fraud, deceit or misrepresentation. A declaration
that Rule 1.02(c) and Comment 7 to Rule 3.03 “are applicable to the facts of this
controversy” would not settle these questions.
Additionally, the trial court’s dismissal did not prevent Willie from raising
the applicability of Rule 1.02(c) and Comment 7 to Rule 3.03 and any associated
defensive issue at trial. Willie requested that the trial court submit Rule 1.02(c)’s
language to the jury in the form of an instruction to Willie’s proposed Jury
Question No. 1.2
In his counter-petition for declaratory judgment, Willie also requested a
declaration that “the causes of action brought by” the Commission are “barred due
to the doctrine of res judicata and/or the doctrine of collateral estoppel” because
(1) “[i]t is uncontroverted, undisputed and has been judicially admitted by the
[Commission] that the issues alleged by the [Commission] have been adjudicated”
in the Beaumont Court of Appeals Houston v. State opinion of May 27, 2009; and
(2) “the causes of action contained in [the Commission’s] First Amended
Disciplinary Petition have already been litigated, found to be without merit and are
totally barred from being relitigated in this or any other forum.”
Res judicata precludes relitigation of claims that have been finally
adjudicated, or that arise out of the same subject matter and that could have been
litigated in the prior action. Amstadt v. United States Brass Corp., 919 S.W.2d
2
Willie challenges the trial court’s refusal to submit Rule 1.02(c)’s language to the jury
in the form of an instruction in his ninth issue. Accordingly, we address this challenge in our
analysis of Willie’s ninth issue.
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644, 652 (Tex. 1996). It requires proof of the following elements: (1) a prior final
judgment on the merits by a court of competent jurisdiction; (2) identity of parties
or those in privity with them; and (3) a second action based on the same claims as
were raised or could have been raised in the first action. Id.
The doctrine of collateral estoppel is used to prevent a party from relitigating
an issue that it previously litigated and lost. Quinney Elec., Inc. v. Kondos Entm’t,
Inc., 988 S.W.2d 212, 213 (Tex. 1999). A party seeking to assert collateral
estoppel must establish that (1) the facts sought to be litigated in the second action
were fully and fairly litigated in the first action; (2) those facts were essential to the
judgment in the first action; and (3) the parties were cast as adversaries in the first
action. Sysco Food Servs., Inc. v. Trapnell, 890 S.W.2d 796, 801 (Tex. 1994)
Nothing in the record establishes that “[i]t is uncontroverted, undisputed and
has been judicially admitted by the [Commission] that the issues alleged by the
[Commission] have been adjudicated” in the Houston opinion, and have “already
been litigated, found to be without merit.” The Beaumont Court of Appeals
opinion addressed issues regarding whether Houston’s convictions for possession
of a controlled substance and bail jumping should be affirmed or overturned. The
court of appeals neither adjudicated nor considered issues concerning whether
Willie’s conduct violated Texas Disciplinary Rules of Professional Conduct 3.01,
3.03(a)(1), and 8.04(a)(3) as the Commission alleged in its live pleading; those
issues were not litigated and were not found to be meritless by the court of appeals.
The court stated in its opinion:
In his opening brief, Houston argued in issue two that the record
contained legally or factually insufficient evidence to support the
convictions. Houston withdrew the issue in his reply brief, but the
State suggests counsel for the appellant represented in the opening
brief that certain events had not occurred in the proceedings below
when he knew the true facts to be otherwise. The brief for the
17
appellant stated ‘[a]s remarkable as it may seem, the State never
introduced the Defendant’s judicial confession, written waiver of
rights, the Presentence Investigation and/or stipulations of evidence
into evidence and the trial court did not admit same in the above-
referenced cause numbers.’ As was established through the filing of
supplemental records, this statement is incorrect.
Counsel for a party, through briefs and in any oral submission, is
expected to provide the Court a fair and accurate understanding of the
facts and the applicable law, and must not misrepresent,
mischaracterize, misquote or miscite the facts or the law. The Court
has inherent power to enforce compliance with the rules, and take
appropriate action. Considering that the issue was withdrawn, and
after examining the briefs, the record before the Court, and the
procedural history in this case, the Court will not proceed further on
issue two.
Houston, 286 S.W.3d at 612. Further, the Commission never admitted that the
causes of action it pleaded in its amended petition had been “adjudicated” in the
court of appeals opinion. Based on the record in this case, Willie’s defenses of res
judicata and collateral estoppel fail on the merits.3 And there is no amended
pleading Willie could have filed in this case that would have supported a
determination that the Commission’s claims are barred by res judicata or collateral
estoppel.
We overrule Willie’s second issue.
III. Exclusion of Evidence
Willie argues in his third issue that the trial court erroneously ruled that his
“Exhibit No. 15 (a copy of Tex. Gov’t Code §52.047), Exhibit No. 16 (a copy of
Tex. R. App. P. 33.1), Exhibit No. 17 (a copy of Tex. R. App. P. 33.2), Exhibit No.
18 (a copy of Tex. R. App. P. 34.6), and Exhibit No. 19 (a copy of Tex. R. App. P.
3
Willie does not state how he would have amended his pleadings to be entitled to a
declaratory judgment in his favor had he been given the opportunity.
18
38.7) were inadmissible as evidence at trial.” He argues that these exhibits were
relevant and their exclusion denied him the opportunity to “present a full and fair
defense to the allegations of” the Commission. According to Willie, “[T]he
excluded evidence is not cumulative and is controlling on a material issue that is
dispositive of the case.”
Determining whether to admit or exclude evidence lies within the trial
court’s sound discretion. Bay Area Healthcare Grp., Ltd. v. McShane, 239 S.W.3d
231, 234 (Tex. 2007); Interstate Northborough P’ship v. State, 66 S.W.3d 213, 220
(Tex. 2001). A trial court exceeds its discretion if it acts in an arbitrary or
unreasonable manner or without reference to guiding rules or principles. See
Bowie Mem’l Hosp. v. Wright, 79 S.W.3d 48, 52 (Tex. 2002). When reviewing
matters committed to the trial court’s discretion, a court of appeals may not
substitute its own judgment for the trial court’s judgment. Id. An appellate court
must uphold the trial court’s evidentiary ruling if there is any legitimate basis for
the ruling. Owens–Corning Fiberglas Corp. v. Malone, 972 S.W.2d 35, 43 (Tex.
1998); see Enbridge Pipelines (E. Tex.) L.P. v. Avinger Timber, LLC, 386 S.W.3d
256, 264 (Tex. 2012).
To reverse a judgment based on a claimed error in admitting or excluding
evidence, a party must show that the error probably resulted in an improper
judgment. Interstate Northborough P’ship, 66 S.W.3d at 220; see Tex. R. App. P.
44.1(a)(1). In determining whether the excluded or admitted evidence probably
resulted in the rendition of an improper judgment, we review the entire record. See
Interstate Northborough P’ship, 66 S.W.3d at 220. Typically, a successful
challenge to a trial court’s evidentiary rulings requires the complaining party to
demonstrate that the judgment turns on the particular evidence excluded or
admitted. Id. This Court ordinarily will not reverse a judgment because a trial
19
court erroneously excluded evidence when the evidence in question is cumulative
and not controlling on a material issue dispositive to the case. Id.
Willie’s Exhibit No. 15 is a copy of Texas Government Code section 52.047
titled “Transcripts;” section 52.047 provides for the procedure and expenses
associated with requesting “a transcript of the evidence in a case reported by an
official court reporter.” See Tex. Gov’t Code Ann. § 52.047 (Vernon 2013).
Willie’s Exhibit No. 16 is a copy of Texas Rule of Appellate Procedure 33.1
titled “Preservation; How Shown.” Rule 33.1 sets out the different ways a party is
required to preserve a complaint in the trial court in order to present it for appellate
review. See Tex. R. App. P. 33.1.
Willie’s Exhibit No. 17 is a copy of Texas Rule of Appellate Procedure 33.2
titled “Formal Bills of Exception,” which provides that a party must file a formal
bill of exception “to complain on appeal about a matter that would not otherwise
appear in the record.” Tex. R. App. P. 33.2. Rule 33.2 sets out the form,
procedure, and time for filing a formal bill of exception. See id.
Willie’s Exhibit No. 18 is a copy of Texas Rule of Appellate Procedure 34.6
titled “Reporter’s Record.” Rule 34.6 sets out, among others, the (1) procedure for
requesting a reporter’s record from a court reporter; (2) requirements and
consequences of requesting only a partial reporter’s record; (3) procedure for
supplementing a reporter’s record; and (4) procedure for correcting any
inaccuracies in the reporter’s record. See Tex. R. App. P. 34.6.
Willie’s Exhibit No. 19 is a copy of Texas Rule of Appellate Procedure 38.7
titled “Amendment or Supplementation.” Rule 38.7 provides that “A brief may be
amended or supplemented whenever justice requires, on whatever reasonable terms
the court may prescribe.” Tex. R. App. P. 38.7.
20
Contrary to Willie’s assertion, we do not agree that the excluded evidence
was “controlling on a material issue” in the case and that the “judgment turns on
the particular evidence excluded.” In fact, it is unclear how the excluded evidence
would have been relevant in this case. “‘Relevant evidence’ means evidence
having any tendency to make the existence of any fact that is of consequence to the
determination of the action more probable or less probable than it would be
without the evidence.” Tex. R. Evid. 401.
Willie argues that “allowing the jury to see the exact wording of the
appellate rules that governed [his] behavior in writing his briefs to the Ninth Court
of Appeals was material” to determining whether he violated Texas Disciplinary
Rules of Professional Conduct. The jury was asked to determine whether Willie,
“while representing Don C. Houston, Jr. in matter Don C. Houston, Jr. vs. The
State of Texas,” (1) “knowingly made a false statement of material fact or law to
the court;” (2) “asserted or controverted an issue in that proceeding in the absence
of a reasonable belief that the basis for doing so was not frivolous;” and (3)
“engaged in conduct involving dishonesty, fraud, deceit or misrepresentation.”
Nothing in the excluded evidence could have aided the jury in answering any of
the three submitted questions. Therefore, the trial court did not err in excluding
Willie’s Exhibit Nos. 15 to 19.
We overrule Willie’s third issue.
IV. Judicial Notice
Willie argues in his fourth issue that the trial court erred when “it did not
take judicial notice of the statute and rules” contained in his Exhibit Nos. 15 to 19
pursuant to Texas Rule of Evidence 201(d), and (g) because these exhibits
“contained adjudicative facts to which the law is applied in the process of
adjudication.”
21
As Willie correctly states in his brief, Rule 201(d) provides that “[a] court
shall take judicial notice if requested by a party and supplied with the necessary
information.” And section (g) of Rule 201 provides that “[i]n civil cases, the court
shall instruct the jury to accept as conclusive any fact judicially noticed.”
Contrary to Willie’s assertion, the record establishes that he did not request
the trial court to take judicial notice of the “statute and rules in question.”
Therefore, Willie’s fourth issue presents nothing for our review. See Tex. R. App.
P. 33.1.(a).
We overrule Willie’s fourth issue.
V. Sufficiency of the Evidence
Willie argues in his fifth issue that the trial court erred by denying his
motion for new trial because there is factually insufficient evidence to support a
jury finding that he violated Texas Disciplinary Rules of Professional Conduct
3.01, 3.03(a)(1), or 8.04(a)(3). Willie argues in his sixth issue that the trial court
erroneously denied his motion for directed verdict, motion for judgment
notwithstanding the verdict, and motion for new trial because there is legally
insufficient evidence to “sustain a finding” that he violated Texas Disciplinary
Rules of Professional Conduct 3.01, 3.03(a)(1), or 8.04(a)(3).
A. Standard of Review
A directed verdict is proper when no evidence of probative force raises a fact
issue on a material element of the plaintiff’s claim, or when the evidence
conclusively establishes a defense to the plaintiff’s cause of action. Prudential Ins.
Co. of Am. v. Fin. Review Servs. Inc., 29 S.W.3d 74, 77 (Tex. 2000). A trial court
may disregard a jury verdict and render judgment notwithstanding the verdict when
no evidence supports the jury finding on an issue necessary to liability, or when a
22
directed verdict would have been proper. Tiller v. McLure, 121 S.W.3d 709, 713
(Tex. 2003); see Tex. R. Civ. P. 301.
“No evidence” or legal insufficiency challenges may be sustained only when
the record discloses one of the following situations: (a) a complete absence of
evidence of a vital fact; (b) the court is barred by rules of law or of evidence from
giving weight to the only evidence offered to prove a vital fact; (c) the evidence
offered to prove a vital fact is no more than a mere scintilla; or (d) the evidence
establishes conclusively the opposite of the vital fact. City of Keller v. Wilson, 168
S.W.3d 802, 810 (Tex. 2005) (citing Robert W. Calvert, “No Evidence” and
“Insufficient Evidence” Points of Error, 38 Tex. L. Rev. 361, 362-63 (1960)).
We must consider evidence in the light most favorable to the verdict and
indulge every reasonable inference that would support it. Id. at 822. If the
evidence allows only one inference, neither jurors nor the reviewing court may
disregard that evidence. Id. “The traditional scope of review does not disregard
contrary evidence in every no evidence review if there is no favorable evidence
(situation (a) above), or if contrary evidence renders supporting evidence
incompetent (situation (b) above) or conclusively establishes the opposite
(situation (d) above).” Id. at 810–11. If the evidence at trial would enable
reasonable and fair-minded people to differ in their conclusions, then jurors must
be allowed to do so. Id. at 822. Accordingly, the ultimate test for legal sufficiency
always must focus on whether the evidence would enable reasonable and fair-
minded jurors to reach the verdict under review. Id. at 827. Legal sufficiency
review in the proper light must credit favorable evidence if reasonable jurors could
do so, and must disregard contrary evidence unless reasonable jurors could not do
so. Id. The reviewing court cannot substitute its judgment for that of the trier of
fact if the evidence falls within this zone of reasonable disagreement. Id. at 822.
23
Jurors are the sole judges of the credibility of the witnesses and the weight to
give their testimony. Id. at 820. They may choose to believe one witness and
disbelieve another. Id. It is the province of the jury to resolve conflicts in the
evidence. Id. Accordingly, courts reviewing all the evidence in a light favorable
to the verdict must assume that jurors resolved all conflicts in accordance with that
verdict. Id.
In reviewing factual sufficiency, we must consider and weigh all the
evidence. Golden Eagle Archery, Inc. v. Jackson, 116 S.W.3d 757, 761 (Tex.
2003). We can set aside a verdict only if the evidence is so weak or if the finding
is so against the great weight and preponderance of the evidence that it is clearly
wrong and manifestly unjust. Id. We may not substitute our own judgment for
that of the trier of fact. Mar. Overseas Corp. v. Ellis, 971 S.W.2d 402, 407 (Tex.
1998). The jury is the sole judge of the credibility of the witnesses and the weight
to be given to their testimony. Golden Eagle Archery, Inc., 116 S.W.3d at 761.
The amount of evidence necessary to affirm a judgment is far less than that
necessary to reverse a judgment. Jones v. Smith, 291 S.W.3d 549, 555 (Tex.
App.—Houston [14th Dist.] 2009, no pet.).
B. Legal and Factual Sufficiency
Willie argues that there is legally and factually insufficient evidence to
support the jury’s findings that he violated Texas Disciplinary Rules of
Professional Conduct 3.01, 3.03(a)(1), or 8.04(a)(3) because (1) Willie had a
reasonable basis for filing issue two in the Houston appellate brief based on “an
accurate reading of the appellate record as first submitted” to the Beaumont Court
of Appeals; (2) Willie properly amended his brief and withdrew issue two after the
complete appellate record was filed in the court of appeals, so that issue two was
never argued before the court; (3) the court of appeals never considered issue two
24
because it was never presented for adjudication; and (4) Willie did not make a false
statement upon which the court of appeals relied in adjudicating the Houston
appeal because the court of appeals stated that it would not consider the withdrawn
issue. According to Willie, “[s]ince Issue No. 2 had been amended, withdrawn,
and superseded and [was] no longer a part of the appellate record in the case, [the
Commission] had no valid cause of action to present to the trial court. In turn, the
trial court had no valid issues to submit to the jury.”
The jury was asked to determine whether Willie, while representing
Houston, knowingly made a false statement of material fact or law to the court;
asserted or controverted an issue in the absence of a reasonable belief that the basis
for doing so was not frivolous; and engaged in conduct involving dishonesty,
fraud, deceit or misrepresentation.
Rule 3.01 provides that “A lawyer shall not bring or defend a proceeding, or
assert or controvert an issue therein, unless the lawyer reasonably believes that
there is a basis for doing so that is not frivolous.” Tex. Disciplinary Rule Prof’l
Conduct R. 3.01, reprinted in Tex. Gov’t Code Ann., title 2, subtit. G, app. A
(Vernon 2013). Rule 3.03(a)(1) provides that “A lawyer shall not knowingly make
a false statement of material fact or law to a tribunal.” Tex. Disciplinary Rule
Prof’l Conduct R. 3.03(a)(1), reprinted in Tex. Gov’t Code Ann., title 2, subtit. G,
app. A (Vernon 2013). Rule 8.04(a)(3) provides that “A lawyer shall not engage in
conduct involving dishonesty, fraud, deceit or misrepresentation.” Tex.
Disciplinary Rule Prof’l Conduct R. 8.04(a)(3), reprinted in Tex. Gov’t Code
Ann., title 2, subtit. G, app. A (Vernon 2013).
At trial, evidence established that Willie represented Houston after he was
charged with possession of a controlled substance and bail jumping. The evidence
established that Houston signed judicial confessions and waivers of rights, which
25
also were signed by Willie and prosecutor Mark on May 12, 2008. At a plea
hearing on the same day, Houston pleaded guilty to both offenses in the presence
of Willie and Mark. Without objection from Willie, Mark introduced the judicial
confessions and waivers of rights into evidence. At the plea hearing, Willie made
no argument on behalf of Houston regarding punishment or any other matter; he
asked only that a PSI report be prepared, and that the parties later return for
sentencing. The trial court then held a punishment hearing on May 23, 2008, and
sentenced Houston. The evidence at trial was undisputed that court reporter Leger
had recorded all trial court proceedings concerning Houston; and transcripts of the
plea and punishment hearings were introduced by the Commission and admitted
into evidence.
The jury also reviewed Willie’s June 5, 2008 email to Leger, in which he
informed Leger that he had the record for the motion to suppress and motion for
reconsideration hearings, and asked Leger to send him exhibits from those two
hearings as well as the “record from the punishment hearing, including all
exhibits.” The jury reviewed Willie’s June 6, 2008 request for preparation of a
reporter’s record, in which Willie asked for “the record from the suppression
hearing and all exhibits tendered and/or admitted at said hearing, the record from
the reconsideration hearing, and the record from the punishment hearing and all
exhibits tendered and/or admitted at said hearing.” The Commission introduced
Willie’s June 6, 2008 request for a clerk’s record, in which Willie asked for
numerous documents but did not ask that Houston’s judicial confessions or waivers
of rights be included.
Willie testified that he requested a complete record of all the hearings,
proceedings, and exhibits relating to his representation of Houston. Willie testified
that the May 12, 2008 hearing, at which Houston entered his guilty pleas, and the
26
May 23, 2008 punishment hearing all were part of a continuous punishment
hearing, and that the court reporter chose to use different titles of “plea hearing”
and “punishment hearing.” Willie suggested that, when he asked for a record of
the “punishment hearing,” the request also included the May 12, 2008 “plea
hearing” because there were “two parts to the punishment hearing.”
Because transcripts of the plea and punishment hearings were admitted into
evidence, the jury could determine whether these two hearings were indeed two
parts of a single punishment hearing. The jury also could consider that Willie
made no argument regarding punishment or any other issue at the May 12, 2008
hearing and asked that the parties later return for punishment.
The jury also could review the appellate brief Willie filed on behalf of
Houston in the Beaumont Court of Appeals, in which Willie asserted in issue two
that “[a]s remarkable as it may seem, the State never introduced the Defendant’s
judicial confession, written waiver of rights, the Presentence Investigation and/or
stipulations of evidence and the trial court did not admit same in the above-
referenced cause numbers.” With regard to Willie’s brief, Mark testified at trial
that Willie’s statement in issue two was untrue because Mark had introduced and
the trial court had admitted the exhibits into evidence in Willie’s presence. Mark
testified that he asked the court of appeals to supplement the appellate record
because Willie had “failed to request the entire record.” After the complete record
had been filed, Mark filed the State’s brief responding to Willie’s argument.
Willie then filed a reply brief, in which he withdrew issue two.
Willie testified that he was not being “deceptive or dishonest.” He said he
was following “at all times” the Texas Rules of Appellate Procedure, which
provide that “you can only argue what’s in the appellate record that the Court of
Appeals has in its possession.” Willie testified that he was required to challenge
27
sufficiency as a “zealous advocate” for his client because the appellate record did
not contain the judicial confessions or waiver of rights exhibits at the time he filed
his brief, and “there was nothing to sustain any conviction.” Willie testified that,
even though he “knew that certain things had occurred” and he was present during
all proceedings, he nonetheless was “constrained” by the record as it existed in the
court of appeals.
Willie testified that he never made a false statement of fact or law to the
court of appeals because, when he argued issue two in his brief, the exhibits were
not a part of the appellate record. He claimed that he did not intentionally deceive
or “commit fraud on the Court of Appeals” because he “corrected the brief and
withdrew” issue two “once the record was supplemented.” Willie acknowledged
that he is “making a legal argument” based on “[t]he appellate record that [he]
directed to be created.”
Contrary to Willie’s contention, a reasonable jury could have disbelieved
this testimony and concluded that Willie knowingly made a false statement of
material fact to the Beaumont Court of Appeals, misrepresented facts, and asserted
issue two in the absence of a reasonable belief that the basis for doing so was not
frivolous. See City of Keller, 168 S.W.3d at 820 (jurors are the sole judges of the
credibility of witnesses). The evidence shows that Willie knew that his factual
representation to the court of appeals was false when he argued the State never
introduced and the trial court never admitted into evidence Houston’s judicial
confessions and written waivers of rights into evidence. The evidence establishes
that (1) Willie was present when Houston signed his judicial confessions and
written waivers of rights; (2) Willie and Mark also signed the documents; (3)
Houston pleaded guilty in Willie’s presence in open court; (4) the State introduced
Houston’s judicial confessions and written waivers of rights as exhibits into
28
evidence; (5) Willie was again present and stated he had no objection to their
admission; and (6) the trial court admitted the exhibits.
Willie admitted at trial that he was present and knew that the State’s exhibits
had been introduced and admitted at the plea hearing, but he claimed that his
knowledge was irrelevant because Leger did not submit the exhibits to the court of
appeals and the exhibits therefore were not part of the appellate record at the time
he filed issue two. According to Willie, his assertion in issue two that the “State
never introduced” and the trial court never admitted the exhibits was not a false
statement of fact or a misrepresentation because the appellate record did not
contain the exhibits. However, the jury reasonably could have concluded based on
the evidence in this case that the exhibits were not a part of the appellate record at
the time he filed his brief because he did not request the exhibits or the plea
hearing transcript to be filed. The jury also could have concluded that Willie did
not have a reasonable basis for filing issue two in his brief because it was based on
the incomplete appellate record Willie requested. In any event, the absence of
these exhibits from the appellate record does not negate Willie’s knowledge of the
truth; Willie knew that the State’s exhibits were introduced and admitted, and his
contrary assertion constitutes a false statement of material fact.
We reject Willie’s contention that the jury’s findings are not supported by
sufficient evidence because he withdrew issue two and “did not make a false
statement upon which the [Beaumont] Court of Appeals relied [i]n its adjudication
of the [Houston] appeal.”
Nothing in the jury charge as submitted — or in Texas Disciplinary Rules of
Professional Conduct 3.01, 3.03(a)(1), or 8.04(a)(3) — requires proof that the court
of appeals considered or relied upon a false statement by Willie in adjudicating the
Houston appeal. Further, withdrawal of a false statement of material fact or a
29
misrepresentation does not extinguish the initial misconduct. See Diaz v. Comm’n
for Lawyer Discipline, 953 S.W.2d 435, 438 (Tex. App.—Austin 1997, no pet.)
(rejecting appellant’s argument that the evidence was insufficient to establish that
any of his false statements were made to a tribunal because appellee’s suit, in
which the false statements were made, was dismissed for want of prosecution
before his statements came before a judge or jury; holding that “Rule 3.03(a)(1)
encompasses false statements by a lawyer that might corrupt the course of
litigation” even if they do not in fact do so); see also Lipman v. Dickinson, 174
F.3d 1363, 1368-70 (Fed. Cir. 1999) (court of appeals affirmed attorney’s
reprimand for violating his duty of candor because attorney filed an appeal petition
with the Patent and Trademark Office on his client’s behalf that referred to and
relied on affidavits that had been withdrawn); Vickery v. Comm’n for Lawyer
Discipline, 5 S.W.3d 241, 263-64 (Tex. App.—Houston [14th Dist.] 1999, pet.
denied) (court of appeals affirmed attorney’s suspension for making knowing
misrepresentations in pleadings); Iowa Supreme Court Attorney Disciplinary Bd.
V. Ackerman, 786 N.W.2d 491, 496 (Iowa 2010) (supreme court affirmed
attorney’s suspension for violating ethics rules “when he misrepresented the status
of the tax matters to the district court”); cf. Schlafly v. Schlafly, 33 S.W.3d 863,
873-74 (Tex. App.—Houston [14th Dist.] 2000, pet. denied) (court of appeals
stated that misrepresenting facts violates the duty of candor in Rule 3.03(a)(1),
which requires attorneys to not make a false statement of material fact or law to the
tribunal, and “subjects offenders to sanctions;” concluded that attorney’s “blatant
misrepresentation” of the facts in his briefing was “inexcusable;” and ordered
payment of “all costs” in the appeal).
Having reviewed the evidence and considered that the jury is the sole judge
of the credibility of the witnesses, we conclude that the evidence is legally and
30
factually sufficient to support the jury’s findings that Willie violated Texas
Disciplinary Rules of Professional Conduct 3.01, 3.03(a)(1), or 8.04(a)(3). See
City of Keller, 168 S.W.3d at 822; Golden Eagle Archery, 116 S.W.3d at 761.
We overrule Willie’s fifth and sixth issues.
VI. Batson Challenge
Willie argues in his seventh issue that the trial court erred by overruling his
challenge under Batson v. Kentucky, 476 U.S. 79 (1986), and empanelling a jury
that “did not represent a cross-section of the community and did not include a
member of [his] race, African-American.” Willie contends that the Commission
used its peremptory challenge to strike venire member number six, who was
African-American, claiming that she was “distracted when answering questions
about her prior experience with her apartment complex” and “her statement and
experience about being falsely accused.” He further contends that the Commission
did not strike non-African-American venire members number 12, 13, and 17 when
they also “told about their personal experiences.” According to Willie, this court
must conclude that “race explains . . . better than any other reason” why the
Commission struck venire member number six.
Batson declared that the use of racially motivated peremptory challenges to
exclude potential jurors in criminal cases violates due process of law. Id.; see also
Brumfield v. Exxon Corp., 63 S.W.3d 912, 915 (Tex. App.—Houston [14th Dist.]
2002, pet. denied). The Batson rule extends to civil trials. Goode v. Shoukfeh, 943
S.W.2d 441, 444 (Tex. 1997) (citing Edmonson v. Leesville Concrete Co., 500 U.S.
614, 618 (1991)); Brumfield, 63 S.W.3d at 915.
Resolution of a Batson challenge is a three-step process: (1) the party
challenging the use of a peremptory challenge to strike a potential juror must
31
establish a prima facie case of racial discrimination; (2) the party who exercised
the strike must come forward with a race-neutral explanation; and (3) if the striking
party does so, the party challenging the strike must prove purposeful racial
discrimination. Brumfield, 63 S.W.3d at 915. (citing Purkett v. Elem, 514 U.S.
765, 767 (1995); Hernandez v. New York, 500 U.S. 352, 358–59 (1991); Goode,
943 S.W.2d at 445). We review a trial court’s Batson ruling for abuse of
discretion. Davis v. Fisk Elec. Co., 268 S.W.3d 508, 515 (Tex. 2008).
The following exchange occurred at trial:
[WILLIE’S COUNSEL]: We would like to assert the Batson motion
at this time.
THE COURT: Ms. Sauceda, do you agree with that?
[THE COMMISSION’S COUNSEL]: Yes.
THE COURT: I don’t have any room.
[THE COMMISSION’S COUNSEL]: Would you like me to specify?
You want me to start — I think that’s the usual process.
[WILLIE’S COUNSEL]: Mrs. Johnson is the first one, I believe is
Juror No. five. Batson motion as to Juror No. six.
THE COURT: Ms. Sauceda, will you state the reasons why you asked
to strike Mrs. Jackson; is that correct?
[THE COMMISSION’S COUNSEL]: Mrs. Jackson, yes, we did.
Because when she was being in dialogue asking questions back and
forth, she seemed to be a bit distracted from our proceedings when she
was answering questions about her experience regarding the
apartment complex and —
THE COURT REPORTER: Please keep your voice up and speak in
the mike because I am barely hearing what you are saying.
THE COURT: I will ask you to repeat that.
[THE COMMISSION’S COUNSEL]: It was her dialogue with
counsel regarding her other prior experience and her statement she
had been falsely accused and her experience with that.
THE COURT: All right. Anything further, Ms. Williams, regarding
32
—
[WILLIE’S COUNSEL]: Yes, Your Honor, it’s our position Juror No.
six, Ms. Johnson, answered exactly the question that was asked of her.
She did not indicate any bias one way or the other for the Commission
or against the Commission. We believe she’s been struck on the basis
of her race.
THE COURT: For the record, Ms. Johnson does list her race as black.
Your motion is overruled as to Juror Johnson. As to — are there any
other ones that you know of that you need to assert, Ms. Williams, at
this time?
[WILLIE’s CUNSEL]: I don’t believe so, Your Honor.
The Commission contends that Willie “did not make a prima facie case” of racial
discrimination because he failed to offer any evidence to suggest that the
Commission used a peremptory challenge to strike venire member number six
because she is African-American.
The Commission offered an explanation for striking venire member number
six, and the trial court ruled on the ultimate question of discrimination. Once the
party who exercised the strike has articulated reasons for the contested peremptory
strike and the trial court has ruled on the ultimate question of intentional
discrimination, the issue of whether the party raising a Batson challenge
established a prima facie case of racial discrimination is moot and, therefore, not
subject to appellate review. See Malone v. State, 919 S.W.2d 410, 412 (Tex. Crim.
App. 1996) (citing Hernandez, 500 U.S. at 359).
Therefore, we next consider whether the Commission articulated a race-
neutral explanation for using its peremptory challenge to strike venire member
number six. See Brumfield, 63 S.W.3d at 915. We do not consider at this second
step whether the explanation is persuasive or even plausible; at this juncture, the
issue is the facial validity of the explanation. Goode, 943 S.W.2d at 445. “A
neutral explanation means that the challenge was based on something other than
33
the juror’s race.” Id.
The Commission’s explanation was race-neutral; the Commission stated that
it used its peremptory challenge to strike venire member number six because she
(1) was distracted when she was answering Willie’s trial counsel’s questions; and
(2) stated that she previously had been accused falsely.
Finally, we consider whether Willie proved purposeful racial discrimination.
See Brumfield, 63 S.W.3d at 915. Whether the race-neutral explanation should be
believed is purely a question for the trial court. Id. at 916.
In response to the Commission’s race-neutral explanation, Willie contended
that venire member number six “answered exactly the question that was asked of
her” and did not show any bias in favor or against the Commission. Willie did not
dispute the Commission’s assertion that venire member number six was distracted
during questioning. Willie did not point to any other venire members that were
equally distracted or had similar experiences as venire member number six but
were not struck by the Commission.
Willie claims for the first time on appeal that the Commission did not strike
non-African-American venire members 12, 13, and 17 who “told about their
personal experiences.” We note that the Commission did not need to exercise
peremptory strikes as to venire members 12 and 17 because it agreed with Willie to
strike these venire members for cause, and the trial court struck these two venire
members for cause. Regarding venire member number 13, there is no evidence in
the record that he was distracted or he had a similar experience as venire member
number six and had been falsely accused.
Additionally, nothing in the record suggests that a pattern of strikes was used
to challenge venire members on the basis of race. The Commission did not
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exercise its peremptory strikes as to any other African-American venire members;
three of the venire members struck by the Commission identified their race as
“Caucasian.” As the trial court noted, the other two “look[ed] to be of Caucasian
descent just by viewing.” No evidence in the record supports Willie’s assertion
that the impaneled jury lacked any African-American members; the record does
not show the jury’s racial composition.
Based on the record before us, we conclude that Willie did not prove
purposeful discrimination by the Commission, and the trial court did not abuse its
discretion in overruling Willie’s Batson challenge.
We overrule Willie’s seventh issue.
VII. Challenge for Cause
Willie argues in his eighth issue that the trial court erroneously overruled his
challenge for cause of venire member thirteen, Mr. Jones, because Jones “believed
that (1) attorneys do not follow the rules[;] (2) there are no good attorneys; (3)
most experiences with attorneys are bad; and (4) he probably would not want
himself as a prospective juror on a family member’s case.” Willie contends that
Jones showed bias against him, and that the trial court struck for cause venire
members twelve and seventeen who had the same views as Jones. According to
Willie, he was “required to use one of his peremptory challenges to strike” Jones
and had “no additional peremptory challenges to strike other objectionable” venire
members.
When a challenge for cause is denied erroneously, that error can be corrected
by the use of a peremptory strike. Cortez v. HCCI–San Antonio, Inc., 159 S.W.3d
87, 90 (Tex. 2005). Thus, the error is harmful only if the peremptory challenge
would have been used on another objectionable venire member. Id. Accordingly,
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to preserve error when a challenge for cause is denied, a party must (1) use a
peremptory challenge against the venire member involved; (2) exhaust his
remaining challenges; and (3) notify the trial court that, after exercising his
peremptory challenges, a specific objectionable venire member will remain on the
jury list. Id. at 90-91 (citing Hallett v. Houston Nw. Med. Ctr., 689 S.W.2d 888,
890 (Tex. 1985)). “This ensures that ‘the court is made aware that objectionable
jurors will be chosen’ while there is still time ‘to determine if the party was in fact
forced to take objectionable jurors.’” Id. at 91 (quoting Hallett, 689 S.W.2d at
890)).
The record establishes that Willie challenged Jones for cause and obtained
an adverse ruling. Willie exercised a peremptory challenge against Jones and also
exhausted his remaining peremptory challenges. However, Willie failed to notify
the trial court that a specific objectionable venire member would remain on the
jury list. Therefore, Willie has failed to preserve any alleged error as to his eighth
issue.
We overrule Willie’s eighth issue.
VIII. Charge Error
Willie argues in his ninth issue that the trial court erred by refusing to submit
two tendered jury questions and instructions, “which relate to Scope and
Objectives of Representation and Fairness in Adjudicatory Proceedings.” Willie
argues that both questions were “reasonably necessary for the jury to render a
proper verdict” because (1) he “testified at trial that the statute and rules of
appellate procedure in question were the ones he relied on when he prepared the
opening and reply brief;” and (2) “Mark testified that the appellate rules allow for
amendments, withdrawals, and supplementation.” According to Willie, this
“charge error related to a contested, critical issue” and warrants reversal.
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A party is entitled to a jury question, instruction, or definition if the
pleadings and evidence raise an issue. Tex. R. Civ. P. 278; Union Pac. R.R. Co. v.
Williams, 85 S.W.3d 162, 166 (Tex. 2002). The goal of the jury charge is to
submit to the jury the issues for decision logically, simply, clearly, fairly, correctly,
and completely. Hyundai Motor Co. v. Rodriguez, 995 S.W.2d 661, 663-64 (Tex.
1999). Toward that end, the trial court enjoys broad discretion so long as the
charge is legally correct. See id. A judgment will not be reversed for charge error
unless the error was harmful because it probably caused the rendition of an
improper verdict or probably prevented the party from properly presenting the case
to the appellate courts. Columbia Rio Grande Healthcare, L.P. v. Hawley, 284
S.W.3d 851, 856 (Tex. 2009). Charge error is generally considered harmful if it
relates to a contested, critical issue. Id.
Willie asked the trial court to submit the following two questions and
instructions to the jury:
QUESTION NO. 1
While representing Don C. Houston, Jr. on appeal, did Joseph R.
Willie, II prepare the Brief of Appellant based upon the appellate
record that was available to him at the time the brief was prepared?
You are instructed that a lawyer may represent a client in
connection with the making of a good faith effort to determine
the validity, scope, meaning or application of the law.
Source: TEX. DISCIPLINARY R. PROF’L CONDUCT 1.02(c)
Answer: ‘Yes’ or ‘No.’
QUESTION NO. 2
Once the appellate record was supplemented by the court reporter, did
Joseph R. Willie, II, in the Reply Brief of Appellant, promptly
withdraw Issue No. 2 according to the Texas Rules of Appellate
Procedure?
You are instructed that the advocate’s function is to present
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evidence and argument so that the cause may be decided
according to law.
Source: TEX. DISCIPLINARY R. PROF’L CONDUCT 3.04, cmt. 5
Answer: ‘Yes’ or ‘No.’
Contrary to Willie’s contention, his tendered questions were not “reasonably
necessary for the jury to render a proper verdict.” Based on the pleadings and the
evidence in this case, the jury was required to determine whether Willie violated
Texas Disciplinary Rules of Professional Conduct 3.01, 3.03(a)(1), and 8.04(a)(3)
by knowingly making a false statement of material fact or law to the court;
asserting or controverting an issue in the absence of a reasonable belief that the
basis for doing so was not frivolous; and engaging in conduct involving
dishonesty, fraud, deceit or misrepresentation. Neither proposed question is
material or helpful in resolving whether Willie violated the Texas Disciplinary
Rules of Professional Conduct.
A “Yes” or “No” answer in response to a question asking whether Willie
prepared his brief on behalf of Houston “based upon the appellate record that was
available to him at the time the brief was prepared” would be immaterial to a
determination as to whether Willie violated the Texas Disciplinary Rules of
Professional Conduct by making a false statement or misrepresentation. On this
record, Willie’s knowledge of the true facts was not affected by what record was
“available” to him; further, the record that was “available” to Willie was the record
he requested from the court reporter. A “Yes” or “No” answer in response to a
question whether Willie promptly withdrew issue two in his reply brief is
immaterial because a subsequent withdrawal does not negate an initial false
statement and misrepresentation that was made knowingly.
Additionally, Willie failed to present any argument explaining how the
alleged charge error was harmful in this case and probably caused the rendition of
38
an improper verdict or probably prevented him from properly presenting his case
to the appellate court.
We overrule Willie’s ninth issue.
IX. Attorney’s Fees and Costs
Willie argues in his tenth and eleventh issues that the trial court erred by (1)
overruling his “objections regarding expert testimony on [the Commission]’s
attorneys’ fees;” and (2) “awarding [the Commission] attorneys’ fees because there
is factually and legally insufficient evidence to support a finding attributable to
Attorney Sauceda” and “Attorney Halliburton.” Willie argues in his twelfth issue
that the trial court erred by overruling his “objections regarding expert testimony
of [the Commission]’s costs because there is factually and legally insufficient
evidence to support an award of costs.”
1. Attorney’s Fees
It is within the trial court’s discretion to determine the punishment of a
lawyer found guilty of professional misconduct. Santos v. Comm’n for Lawyer
Discipline, 140 S.W.3d 397, 403 (Tex. App.—Houston [14th Dist.] 2004, no pet.).
The Rules of Disciplinary Procedure provide that a trial court may in its discretion
hold a separate evidentiary hearing to determine the appropriate sanctions to be
imposed; “[r]easonable [a]ttorney’s [f]ees and all direct expenses associated with
the proceedings” may be awarded as a sanction. See Tex. Rules Disciplinary P. R.
1.06(Y), 3.10, reprinted in Tex. Gov’t Code Ann., tit. 2, subtit. G, app. A-1
(Vernon 2013 & Supp. 2014); Santos, 140 S.W.3d at 403.
In his tenth and eleventh issue, Willie first contends that the trial court
erroneously overruled his objection to an expert report and testimony by the
Commission’s attorney, Shannon Sauceda, relating to attorney’s fees the
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Commission incurred in this case. Willie contends that the Commission “failed to
timely produce and/or supplement an expert report for” attorneys Sauceda and
Halliburton as required by Texas Rules of Civil Procedure 193.5, 193.6, 195.2, and
195.3. According to Willie, Rule 195.2 required the Commission to designate its
experts; Rule 195.3 required the Commission to “designate experts and furnish an
expert report or make any experts available for deposition, if no expert report was
filed;” Rule 193.5 requires the Commission to “supplement discovery, including an
expert report;” and Rule 193.6 “provides that a party who fails to supplement may
not introduce in evidence the material or information that was not timely
disclosed.” Willie contends the trial court “fail[ed] to correctly apply Rules 193.5
and 193.6” and should have “exclude[d] the expert report for” attorneys Sauceda
and Halliburton and “any testimony or information outlined in the expert report.”
At trial, Willie objected based on Texas Rule of Civil Procedure 194 to
Sauceda’s testimony regarding attorney’s fees, stating: “We object to the
submission of the evidence especially in [the] form of her report which was never
produced to us. She did designate herself as an expert but as far as the segregation
of fees which is required by the rules she has not submitted any — she did not
supplement her discovery or her designation of expert to provide that information
and we would object to it.” Because Willie’s complaint on appeal does not
comport with his objection in the trial court, this part of Willie’s tenth and eleventh
issues has not been preserved for appeal. See Tex. R. App. P. 33.1(a); Johnson v.
Evans, No. 14–08–00610–CV, 2010 WL 431293, at *6 (Tex. App.—Houston
[14th Dist.] Feb. 9, 2010, pet. denied) (mem. op.).
Even if Willie had preserved his appellate complaint, it is without merit.
There was no expert report or testimony regarding an expert report admitted at
trial; accordingly, the trial court could not have erred by “fail[ing] to exclude the
40
expert report for” attorneys Sauceda and Halliburton and by failing to exclude “any
testimony or information outlined in the expert report.”
Further, Sauceda testified that she had designated herself as an expert to
testify regarding the Commission’s incurred attorney’s fees; Willie does not point
to any evidence that Sauceda’s expert designation was untimely. Contrary to
Willie’s assertion, nothing in Rule 195.3 “imposes a duty to designate experts and
furnish an expert report;” thus, the Commission did not fail to timely produce an
expert report under Rule 195.3. See Tex. R. Civ. P. 195.3. Willie correctly states
that Rule 195.3 requires the Commission to make an expert available for
deposition; however, Willie does not argue that the Commission did not comply
with the Rule’s requirement and failed to make its expert available to Willie.
Willie’s contention that the Commission failed to timely supplement an
expert report for attorneys Sauceda and Halliburton pursuant to Rule 193.5 is also
without merit. Rule 193.5 provides that “[i]f a party learns that the party’s
response to written discovery was incomplete or incorrect when made, or, although
complete and correct when made, is no longer complete and correct, the party must
amend or supplement the response” reasonably promptly. Tex. R. Civ. P. 193.5.
Willie did not serve any discovery request on the Commission, and thus there was
no response that the Commission could have supplemented.
In his tenth and eleventh issues, Willie also argues that, while the
Commission “applied for attorneys’ fees under the lodestar method,” it did not
provide documentation that shows the nature of the work performed; who
performed the services and their hourly rate; when the services were performed;
the number of hours worked; billing records or time sheets as required by El Apple
I, Ltd. v. Olivas, 370 S.W.3d 757 (Tex. 2012).
Willie states that he “objected to [the Commission] not (1) producing expert
41
reports; (2) segregating fees; and (3) supplementing designation of expert to
provide information.” But Willie raised no complaint in the trial court that the
Commission did not provide appropriate documentation under the lodestar method
to support the requested attorney’s fees. Because Willie failed to raise this
argument in the trial court, his complaint presents nothing for our review. See Tex.
R. App. P. 33.1 (As a prerequisite to presenting a complaint for appellate review,
the record must show that the complaint was made to the trial court by a timely
request, objection, or motion.).
Finally, Willie states, “A party seeking attorneys’ fees has a duty to
segregate non-recoverable fees from recoverable fees. Reversal is required if a
party refuses, over objection, to offer evidence segregating attorneys’ fees.” Willie
presents no argument regarding this statement; accordingly, this statement does not
present anything for our review. See Tex. R. App. P. 38.1(i) (“The brief must
contain a clear and concise argument for the contentions made, with appropriate
citations to authorities and to the record.”).
We overrule Willie’s tenth and eleventh issues.
2. Costs
In his twelfth issue, Willie states that the “trial court erred in overruling [his]
objections regarding expert testimony of [the Commission]’s costs because there is
factually and legally insufficient evidence to support an award of costs.” However,
Willie actually contends in this issue that the Commission “failed to timely
produce and/or supplement its list of costs as required by Texas Rules of Civil
Procedure 193.5 and 193.6.”
Willie objected in the trial court to the admission of the Commission’s list of
costs pursuant to Rule 194 — not pursuant to Rules 193.5 and 193.6. Because
42
Willie’s complaint on appeal does not comport with his objection in the trial court,
this part of Willie’s issue has not been preserved for appeal. See Tex. R. App. P.
33.1(a); Johnson, 2010 WL 431293, at *6. Even if properly preserved, Willie’s
contention is without merit. As we have discussed above, Willie did not serve any
discovery request on the Commission, and thus there was no original response
regarding a list of costs that the Commission could have supplemented pursuant to
Rule 193.5. See Tex. R. Civ. P. 193.5. (providing that “[i]f a party learns that the
party’s response to written discovery was incomplete or incorrect when made, or,
although complete and correct when made, is no longer complete and correct, the
party must amend or supplement the response” reasonably promptly).
In this issue, Willie also argues that the trial court erred by awarding the
Commission expenses for delivery services and postage as costs because such
expenses constitute unrecoverable litigation expenses.
As we have stated, the Rules of Disciplinary Procedure provide that a trial
court may in its discretion impose reasonable attorney’s fees and “all direct
expenses associated with the proceedings” as a sanction. See Tex. Rules
Disciplinary P. R. 1.06(Y), 3.10; Santos, 140 S.W.3d at 403. The Rules of
Disciplinary Procedure do not state that the trial court may only award “costs” as
provided for in the Texas Rules of Civil Procedure or as provided by other rules
and statutes.
Willie has not provided us with any explanation as to why expenses for
delivery services and postage do not fall within the broad language of “all direct
expenses associated with the proceeding.”
We overrule Willie’s twelfth issue.
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CONCLUSION
We affirm the trial court’s judgment.
/s/ William J. Boyce
Justice
Panel consists of Justices Boyce, Jamison, and Donovan.
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