Smith v. State

• Decision Date: 29 December 1972
• Docket Number: No. 742,742
• Citation: 490 S.W.2d 902
• Parties: Farrell M. SMITH, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

Page 902

490 S.W.2d 902

Farrell M. SMITH, Appellant, v. The STATE of Texas, Appellee.

No. 742.

Court of Civil Appeals of Texas,

Corpus Christi.

Dec. 29, 1972.

Rehearing Denied Feb. 1, 1973.

Edmond J. Ford, Jr., Corpus Christi, for appellant.

Davis Grant, Gen. Counsel, State bar of Texas, Austin, Harris, Cook & Browning, James R. Harris, Corpus Christi, for appellee.

OPINION

NYE, Chief Justice.

This is a disbarment action. The State of Texas acting by and through the Grievance Committee for Bar District 14--A of the State Bar of Texas brought an action to disbar Farrell Murray Smith from the practice of law. The case was tried to a jury. Based on the findings of the jury, the trial court suspended Smith from the practice of law for five years from and after January 28, 1972. Smith has appealed the trial court's judgment.

The Grievance Committee for Bar District 14--A of the State Bar of Texas, after consideration of testimony before it, filed suit for the disbarment of Farrell Murray Smith, appellant herein, alleging nine counts of professional misconduct. Prior to trial, appellant filed an application for a writ of prohibition in this Court to prohibit the trial judge from proceeding to trial. The writ was denied. Smith v. Grievance Committee, State Bar of Texas for District 14--A, 475 S.W.2d 396 (Tex.Civ.App.--Corpus Christi 1972). The case then proceeded to trial before a jury. The jury found the appellant guilty of dishonorable conduct on Counts Two, Three, Four, Five and Seven, and not guilty on Counts One, Six and Eight. Count Nine was not submitted. The trial court rendered judgment suspending Smith for 5 years from practicing law. On appeal, appellant presents eighteen points of error.

The appellant claims reversible error in his second point because the trial court did not permit appellant to present evidence relating to the mental history of Fred E. Hendricks, a material witness, concerning Counts 4 and 5. The State presented a motion in limine to the court to prevent the introduction of any such testimony. The motion was granted. At the trial, immediately prior to the cross-examination of Hendricks, appellant re-offered the evidence of prior mental history to impeach his credibility. It was refused by the trial court. At the conclusion of the cross-examination of witness Hendricks, appellant made his bill of exception. This excluded evidence in the bill of exception is properly before us.

Count 4 charged the appellant with professional misconduct. Specifically it involved a transaction between the appellant as an attorney representing Fred E. Hendricks and Charles W. Henderson in the prosecution of a lawsuit. The count charges the appellant with subornation of perjury, a crime of inducing another to commit perjury or false swearing. A brief statement of the facts showed that Hendricks and Henderson employed the appellant to bring suit for an accounting in a partnership against Robert I. Kubicek. The case was subsequently expanded to include a count for libel and slander against Kubicek.

Kubicek's attorney arranged to take the depositions of Hendricks and Henderson. On the way to take the deposition, Hendricks testified that he told the appellant that he had previously been convicted of a felony. He asked the appellant what he should do if this question arose at the deposition. Hendricks testified that the appellant told him that it wasn't important because this was a civil case; that it was irrelevant; and to simply say 'No'. At the deposition, Hendricks (having previously been sworn to tell the truth) was asked if he had been convicted of a felony. He stated that he had not.

During the court trial of the suit of Hendricks and Henderson against Kubicek in 1969, and while Hendricks was on the witness stand under cross examination, he was again asked the question concerning a prior felony conviction in 1963. Hendricks did not answer. The evidence showed that thereafter a complete breakdown of that case took place following the propounding of the question. Appellant Smith, according to Hendricks, started yelling. Hendricks began crying, whereupon the court recessed the jury and cleared the courtroom. Later appellant Smith told Hendricks to see the probation officer and get information from him so he could hold Kubicek's attorney in contempt of court, presumably for asking the question. Later the appellant, on behalf of Hendricks and Henderson, took a nonsuit.

In the present disbarment proceeding, Hendricks stated that he had told the appellant of his previous conviction on several occasions, including one time when he signed a bond. Henderson, Hendricks' partner, testified that he had heard Hendricks discuss the conviction with the appellant on the way over to take the deposition. He corroborated Hendricks' testimony to this extent. The appellant emphatically denied telling Hendricks to perjure himself; he stated he did not know of the prior conviction of Hendricks.

On cross examination of Hendricks, appellant's attorney attempted to attack the credibility of Hendricks by introducing evidence of Hendricks' past mental condition. The trial court refused to admit any of the testimony.

Prior to the trial of the disbarment proceeding, the State Bar presented three motions in limine before the trial commenced. One of the motions restricted the appellant from injecting into the trial any evidence that Hendricks was confined to a mental hospital and/or was under the care of a psychiatrist; the second motion restricted the appellant from mentioning that Hendricks had committed any other crime; and the third motion restricted the appellant from injecting into the trial any evidence that Hendricks and Henderson were homosexuals. The three motions were granted.

During the trial and before the appellant started the cross examination of Hendricks, and out of the presence of the jury, the attorney for the appellant made known to the judge that he wanted to question Hendricks, with regard to the subjects prohibited by the motions in limine. The trial court refused to let him. After the cross examination of Hendricks, the attorney for the appellant made a bill of exception on Hendricks' prior mental condition. The trial court refused to permit the appellant to make any bill concerning Hendricks being a homosexual.

In the bill that was permitted by the trial court, it was shown that Hendricks had been convicted of armed robbery in Virginia in 1963. At that time he was given parole on the condition that he would enter a mental hospital for treatment if he 'needed it'. The evidence showed that Hendricks had been in a mental home or institution for observation after arrest from 1960 to 1968, thereafter being transferred from jail to several hospitals for observation; that during this particular time, Hendricks was in the hospital for 18 months; that prior to entering the Army, Hendricks had been under a psychiatrist's care and had been treated at the Ealter Reed Hospital for a period of time. In 1957, by a jury verdict, he was proved insane and confined for 15 months in the Rusk Institute for the criminally insane where he had 'no treatment'. He was subsequently found sane. There was evidence that he had had auditory hallucinations. After the trial in which Hendricks and Henderson had sued Kubicek in 1969, Hendricks told Smith that he was not sure he had been convicted in 1963. He stated that his lawyer 'may have messed him up' and that that had been his reason for being convicted.

It was relevant, we believe, that during the Kubicek trial, Hendricks completely broke down and cried when asked if he had ever committed a felony. This recent episode showed a possible continuation of his prior mental condition. The jury was entitled to pass on his credibility. The jury ultimately answered the following special issues concerning Count 4 'Do you find from a preponderance of the evidence that prior to the taking of Fred E. Hendricks' oral deposition in the Kubicek case, the Defendant, Farrell Murray Smith, knew that said Fred E. Hendricks had theretofore been convicted of a felony?

Answer We do

Do you find from a preponderance of the evidence that prior to the taking of the deposition of Fred E. Hendricks, Farrell Murray Smith willfully advised Fred E. Hendricks to answer 'No.' should he be asked if he had been convicted of a felony during the taking of a deposition in connection with a suit styled Fred E. Hendricks et al, vs. Robert J. Kubicek, et al, Cause No. 96800--A on the docket of the 28th Judicial District, Nueces County, Texas?

Answer We do'

Count 5 charged the appellant with altering a contract of employment. This count again involved Hendricks and Henderson. The court alleges that between February 21 and April 9, 1969, while the contract of employment between Hendricks, Henderson and appellant was in force and effect, the appellant added to the contract without the knowledge and consent of Hendricks and Henderson, a sentence to the contingency part of the contract which stated that: if Hendricks and Henderson did not pursue their suit (against Kubicek) to judgment, the contingency fee would not apply, but that Smith would be paid on an hourly basis for the time spent on the suit. The special issue inquired:

'Do you find from a preponderance of the evidence that some time between February 21, 1969, and April 9, 1969 the Defendant Farrell Murray Smith willfully altered the contract of employment with Hendricks and Henderson by inserting a paragraph in the contract of employment without their knowledge and consent?

Answer We do.'

The contract of employment had been executed by Hendricks and Henderson in connection with their employment of the appellant in the Kubicek case. The contract in question contains the purportedly added provision to the effect that should the suit be tried, Farrell M. Smith was to receive a percentage of the recovery. But if the suit was not tried, then Smith was to be...