Willie v. Comm'n for Lawyer Discipline, 14-13-00872-CV

Decision Date17 March 2015
Docket NumberNO. 14-13-00872-CV,14-13-00872-CV
PartiesJOSEPH R. WILLIE, II, Appellant v. COMMISSION FOR LAWYER DISCIPLINE, Appellee
CourtTexas Court of Appeals

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. Afterconsulting 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 notask 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 andordering 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

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. §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....

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