No. 03-15-00083-CV

_______________________________________________________

In the Third Court of Appeals

Austin, Texas

_______________________________________________________

CRAIG A. WASHINGTON

Appellant,

v.

COMMISSION FOR LAWYER DISCIPLINE

Appellees.

_______________________________________________________

Appeal from the District Court of Bastrop County 335th Judicial District,

Cause No. 29,123

_______________________________________________________

Reply Brief

_______________________________________________________

Michael A. Stafford

Texas Bar No. 18996970

mstafford@gardere.com

Katharine D. David

Texas Bar No. 24045749

kdavid@gardere.com

Stacy R. Obenhaus

Texas Bar No. 15161570

sobenhaus@gardere.com

John MacVane

Texas Bar No. 24085444

jmacvane@gardere.com

Gardere Wynne Sewell LLP

1000 Louisiana Street, Suite 2000

Houston, Texas 77002

Tel: 713.276.5500

Fax: 713.276.5555

COUNSEL FOR APPELLANT

CRAIG A. WASHINGTON

ACCEPTED

03-15-00083-CV

7916404

THIRD COURT OF APPEALS

AUSTIN, TEXAS

11/19/2015 7:05:28 PM

JEFFREY D. KYLE

CLERK

 FILED IN 3rd COURT OF APPEALS AUSTIN, TEXAS 11/19/2015 7:05:28 PM JEFFREY D. KYLE Clerk
2

Table of Contents

Page(s)

Index of Authorities................................................................................................4

Summary of Reply ..................................................................................................5

Reply .........................................................................................................................7

I. A clarification of the issues: The Commission does not dispute

that the trial court erroneously excluded evidence of Mr.

Washington’s good character......................................................................7

II. Mr. Washington directly refuted Mr. Gobert and Ms. Randle’s

version of events—to the extent the trial court’s limits on his

testimony permitted. ..................................................................................15

III. There was nothing particularly “compelling” about Mr. Gobert

and Ms. Randle’s testimony that would have rendered evidence

of Mr. Washington’s character inconsequential.....................................20

IV. The record, viewed as a whole, establishes that Mr. Washington

would have introduced compelling and overwhelming

character evidence if permitted to do so. ................................................22

V. Evidence of Mr. Washington’s excellent reputation was also

admissible to support his credibility as a witness. ................................24

A. It would be inapropriate to assume that evidence of Mr.

Washington’s truthful character would not have altered

the verdict as to the other charges against Mr.

Washington. ......................................................................................25

B. The Commission directly attacked Mr. Washington’s

credibility, which permitted him to introduce evidence of

his good character under Rule 608(a)............................................27

C. Mr. Washington’s counsel preserved rehabilitation of Mr.

Washington as a witness as a basis for admitting

character evidence............................................................................29
3

VI. Mr. Washington stands on his prior briefing with regard to his

remaining arguments.................................................................................35

Prayer......................................................................................................................35

Certificate of Service .............................................................................................37

Certificate of Compliance ....................................................................................37
4

Index of Authorities

Page(s)

CASES

Arkoma Basin Exploration Co., Inc. v. FMF Associates 1990-A, Ltd.,

249 S.W.3d 380 (Tex. 2008)..............................................................................34

Barina v. Barina,

No. 03-08-00341-CV, 2008 WL 4951224 (Tex. App.—Austin Nov.

21, 2008, no pet.)...............................................................................................30

Michael v. State,

235 S.W.3d 723 (Tex. Crim. App. 2007)...................................................14, 27

Reliance Steel & Aluminum Co. v. Sevcik,

267 S.W.3d 867, 871 (Tex. 2008)......................................................................23

Thota v. Young,

366 S.W.3d 678 (Tex. 2012)................................................................................2

Wooten v. State,

No. 03-11-00667-CR, 2013 WL 1831571 (Tex. App.—Austin Apr. 24,

2013, pet. ref’d) .................................................................................................29

OTHER AUTHORITIES

Tex. R. App. P. 9.4 .................................................................................................37

Tex. R. App. P. 33.1 ...........................................................................................30, 5

Tex. R. App. P. 44.1 .........................................................................................15, 26

Tex. R. Evid. 404 .............................................................................................passim

Tex. R. Evid. 608(a).........................................................................................passim
5

Summary of Reply

Reputation is a lawyer’s stock-in-trade. As members of the bar, we

devote our lives to establishing, maintaining, and preserving our

reputations. Whether before a court, a client, or a colleague, our reputation

is often our most valuable bargaining chip; it is always our most prized.

Craig Washington knew this. He spent forty-five years fighting for

those who most needed an advocate and exemplifying the best of our

profession. Over the course of his career, he represented those most in need

for free. In exchange for this sacrifice, Mr. Washington received something

more valuable to a lawyer than any fee. At every turn and every day, Mr.

Washington invested in his reputation: a reputation characterized by

honesty, integrity, and excellence as an advocate.

In this case, Mr. Washington’s clients called him a liar. The

Commission for Lawyer Discipline charged him with deceit, dishonesty,

and misrepresentation, and attacked his credibility at every opportunity.

When Mr. Washington took the stand in his own defense, he did so

stripped of the reputation that he’d spent a lifetime earning. This man,

who’d sacrificed so much to engender respect and friendship from all

corners of the Texas bar, faced his two accusers alone. He sought to
6

introduce character evidence, and his lawyer clearly articulated multiple

bases for doing so, but his request was denied.

On appeal, the Commission does not dispute that keeping Mr.

Washington’s reputation from the jury was error, but the Commission

contends any error was harmless. Mr. Washington respectfully submits

that few lawyers compelled to stand alone against a former client without

the comfort and support of allegiances earned over a lifetime would agree

with the Commission’s harm analysis. Mr. Washington respectfully

submits that stripping a forty-year lawyer of the stellar reputation that he

spent a lifetime earning cannot be characterized as “harmless.” Nor can

pitting this lawyer alone in a two-on-one swearing contest against

disgruntled clients.

The Rules allowing admission of character evidence exist because the

marks of honesty on which jurors rely everyday are often absent in the

courtroom. All witnesses—whatever their history—guaranty their honesty

by oath alone. To the jury, all oaths appear equal—even though everyone

knows that they are not, and often cannot be.

Excluding character evidence in this case was patently harmful and

that error requires reversal of the trial court’s judgment.
7

Reply

I. A CLARIFICATION OF THE ISSUES: THE COMMISSION DOES NOT DISPUTE

THAT THE TRIAL COURT ERRONEOUSLY EXCLUDED EVIDENCE OF MR.

WASHINGTON’S GOOD CHARACTER.

The Commission does not argue that the trial court properly

exercised its discretion in excluding evidence of Mr. Washington’s good

character. The parties are in agreement that the Commission accused Mr.

Washington of conduct involving moral turpitude, so Rule 404(a)(1)(B)

entitled him to introduce evidence of his exemplary character. Excluding

this evidence was error.

Ignoring the trial court’s violation Rule 404(a)(1)(B), the commission

instead argues that evidence of Mr. Washington’s good character would

have had no effect on the outcome of this case—a case about whether Mr.

Washington deceived his client (Comm’n Br. at 16-23).

The Commission’s focus on this single charge exposes an important

point about the harm analysis. Mr. Washington devoted significant briefing

to the harmfulness of excluding evidence of his good character across all of
8

the allegations against him, but the Commission largely ignores this

directly conflicting evidence on most of the charges.1

The conflicting evidence on the charges other than deception is

summarized as follows:2

Allegation Mr. Washington’s

Evidence

Commission’s

Evidence

Mr. Washington

neglected a matter

entrusted to him.

Mr. Washington

testified that he

properly attended to

Mr. Gobert’s case by:3

 conducting

discovery and

preparing for trial;4

The Commission

offered no testimony

contradicting Mr.

Washington’s

explanation, but

attempted to impeach

and contradict him

with various

documents.5

[continued on following page]

1 The allegations against Mr. Washington were (1) neglecting his clients’ case, (2) failing

to keep his clients reasonably informed, (3) failing to promptly comply with requests for

information, (4) failing to surrender papers, and (5) conduct involving deceit,

dishonesty, and misrepresentation (1 CR 140-44).

2 This summary—in varying levels of detail was also laid out in Mr. Washington’s

principal brief at pages 3–11 and 28–30. Mr. Washington incorporates these discussions

of the conflicting evidence herein for all purposes.

3 (See, generally, 4 RR 81:14-114:2).

4 (See 4 RR 94:15-:17).

5 (4 RR 36:15-37:4); (4 RR 45:7-49:18).
9

Allegation Mr. Washington’s

Evidence

Commission’s

Evidence

Mr. Washington

neglected a matter

entrusted to him.

[continued]

 attending the

conflicting murder

setting instead of Mr.

Gobert’s setting in

accordance with the

local rules;6

 informing the Gobert

court of the conflict

by phone on two

occasions;7

 informing opposing

counsel of the

conflict;8

 sending a substitute

attorney to the

Gobert pretrial;9

[continued on following page]

6 (4 RR 46:7-48:1).

7 (4 RR 35:18-36:3); (8 RR P’s Exh 18, .pdf 83).

8 (4 RR 54:5-:9).

9 (4 RR 35:23-36:3).
10

Allegation Mr. Washington’s

Evidence

Commission’s

Evidence

Mr. Washington

neglected a matter

entrusted to him.

[continued]

 moving to reinstate

after the court

improperly

dismissed the case

for want of

prosecution without

notice or a hearing;10

and

 appealing the court’s

ruling after it denied

the motion to

reinstate (again

while improperly

denying Mr. Gobert

his right to a

hearing)11

10 (8 RR P’s Exh 18, .pdf 85-89).

11 (8 RR P’s Exh 17, .pdf 60-64).
11

Allegation Mr. Washington’s

Evidence

Commission’s

Evidence

Mr. Washington failed

to keep his clients

reasonably informed.12

Mr. Washington

testified that:

 he notified Ms.

Randle of the case’s

dismissal after it

occurred and before

filing his motion to

reinstate;13

 he never failed to

return Ms. Randle’s

calls, allow her an

appointment, or

provide her copies of

case materials;14 and

 he informed both

Mr. Gobert and Ms.

Randle about the

case’s trial setting in

person.15

Ms. Randle testified

that Mr. Washington

never informed her that

the district court had

dismissed Mr. Gobert’s

case or that he had

moved to reinstate the

case.16

Mr. Gobert similarly

testified that Mr.

Washington was often

unreachable,17 that Mr.

Washington failed to

inform him of the case’s

dismissal,18 and that

Mr. Washington failed

to inform him of the

case’s trial setting.19

12 (1 CR 141).

13 (4 RR 106:10-:13).

14 (4 RR 132:10-:23).

15 (4 RR 50:7-:14).

16 (3 RR 44:11-:21).

17 3 RR 144:24-145:14; 156:11-157:10).

18 (147:7-:13, 150:8-:12).

19 (4 RR 147:14-:16).
12

Allegation Mr. Washington’s

Evidence

Commission’s

Evidence

Mr. Washington failed

to promptly comply

with reasonable

requests for

information20 and to

surrender documents21

Mr. Washington

testified that he

provided Ms. Randle

with a copy of the file

whether she asked for it

or not.22

Ms. Randle said that

Mr. Washington gave

her a copy of the file at

one time, but that she

did not receive any

documents after 2008.23

Mr. Gobert said that he

requested a copy of the

file from Mr.

Washington, but did

not receive one.24

As this chart and Mr. Washington’s principal brief demonstrate, Mr.

Washington’s testimony and evidence on each of the above issues directly

and sharply conflicted with the Commission’s. Nonetheless, in its

Appellee’s brief, the Commission hardly addresses the contested evidence

on the majority of the allegations against Mr. Washington.

Instead, the Commission argues that the character evidence which

Mr. Washington concededly could have admitted under Rule 404(a)(1)(B)

20 (1 CR 142).

21 (1 CR 143).

22 (4 RR 131:16–134:11).

23 (3 RR 30:9-:25).

24 (4 RR 162:7:-:24).
13

was inadmissible under Rule 608(a).25 According to the Commission, even

though it expressly accused Mr. Washington of “dishonesty, deceit, [and]

misrepresentation,”26 and even though Mr. Washington’s credibility was

the central focus of the case, Mr. Washington could not introduce character

evidence to rebut the Commission’s attack.

As discussed below, this argument is wrong as a matter of law. But

more to the point, the Commission’s attempt to cabin the admissibility of

Mr. Washington’s character evidence to a single charge relies upon a razorthin distinction between an “attack” on credibility under Rule 608(a) and

an “accus[ation] involving moral turpitude” under Rule 408(a)(1)(A).

No such distinction can colorably be said to exist in this case. The

Commission accused Mr. Washington of “conduct involving dishonesty,

deceit, [and] misrepresentation” (1 CR 144). Mr. Washington’s initial brief

pointed out the myriad ways in which the Commission pressed this

accusation through its argument, evidence, and examination of Mr.

Washington (Washington Br. at 22–23; 25–26). Indeed, the Commission had

25 The Commission also argues that Mr. Washington failed to preserve the admissibility

of the evidence under Rule 608(a) for this Court’s review. As discussed below, this is

not the case.

26 (1 CR 144).
14

to attack Mr. Washington’s credibility to prove its case. Question Number 4

to the jury asked whether Mr. Washington “engage[d] in conduct involving

dishonesty, deceit, or misrepresentation” (1 CR 144).

Expecting a juror to so compartmentalize the evidence that the

Commission all but concedes was admissible asks too much. No juror

could possibly be expected to consider evidence of Mr. Washington’s

honesty only when determining whether he lied to his clients while

simultaneously ignoring this evidence when determining whether Mr.

Washington was telling the truth on the stand. And more to the point, no

juror would understand the substantive accusations that Mr. Washington

lied to his client to be anything other than an attack on Mr. Washington’s

credibility. See Michael v. State, 235 S.W.3d 723, 728 (Tex. Crim. App. 2007)

(stating that test to determine “attack” under Rule 608(a) is “whether a

reasonable juror would believe that a witness’s character for truthfulness

has been attacked by cross-examination, evidence from other witnesses, or

statements of counsel”).

* * * *

In short, the erroneous exclusion of Mr. Washington’s character

evidence infected the entire trial. Parsing the evidence as the Commission
15

requests disregards both the Rule 608(a) “attack-on-credibility” test and

any common sense understanding of how the jury would have interpreted

the evidence.

Under Texas Rule of Appellate Procedure 44.1(b), this Court can only

reverse in part when it can do so “without unfairness to the parties.” Given

the practical impossibility of separating Mr. Washington’s character for

truthfulness with respect to the substantive charges from his character for

truthfulness as a witness, compartmentalizing the issues as the

Commission urges would be unworkable in practice.

The Commission’s specific arguments regarding exclusion of the

character evidence are addressed below.

II. MR. WASHINGTON DIRECTLY REFUTED MR. GOBERT AND MS. RANDLE’S

VERSION OF EVENTS—TO THE EXTENT THE TRIAL COURT’S LIMITS ON HIS

TESTIMONY PERMITTED.

The Commission first argues that the exclusion of Mr. Washington’s

character evidence was harmless because Mr. Washington offered the

equivalent of “no evidence” that he did not explicitly lie to his clients

regarding the status of the case (Comm’n Br. at 24).
16

But Mr. Washington did dispute Mr. Gobert and Ms. Randle’s version

of events. In fact, Mr. Washington directly testified that he informed Ms.

Randle of the case’s dismissal shortly after it occurred:

Q. Your office learned that the case had been dismissed on

October 14th?

A. That’s correct.

Q. And what was your response?

A. My legal response?

Q. Yes, sir. What was your—as an attorney, what did you do

next?

A. I notified Ms. Randle, I think was her name still at the

time. And I took what action I thought I could to rectify

the situation. I filed a motion to reinstate the case on the

docket.

(3 RR 106:5-:15) (emphasis added).

It’s unclear how much more direct the Commission believes Mr.

Washington needed to be in order to rebut Mr. Gobert’s and Ms. Randle’s

allegations. Gobert and Randle said that Mr. Washington never informed

them of the dismissal until they discovered it independently years later.

Mr. Washington said that the first thing he did after the dismissal was

inform Ms. Randle.
17

The Commission never asked Mr. Washington whether he lied to his

clients about the case. Nonetheless, the Commission makes much of Mr.

Washington’s “evasive” answer to his own counsel’s question regarding

whether Mr. Washington told Ms. Randle that there “were no problems

with the case, everything was going smoothly, even though the case had

been dismissed and [Mr. Washington had] appealed it” (see Comm’n Br. at

22).

Contrary to the Commission’s argument, in the context of the

examination, Mr. Washington’s answer— that “[f]rom day one,” he “told

[Ms. Randle] what the problems were” (4 RR 133:6-:12)—could not have

been more direct. Mr. Washington’s trial counsel spent much of the

examination addressing the folly—both legal and factual—of the

Commission’s argument that Mr. Washington’s handling of conflicting trial

settings violated ethical rules. Though the Commission scarcely addresses

these issues in its appellate brief, they were hotly contested in the trial

court (see Washington Br. at 7-11; 28-30).

By the time Mr. Washington reached the deception allegation—an

accusation that, as discussed above, he’d already expressly denied—the

Court informed Mr. Washington’s counsel that he had only two minutes
18

remaining (4 RR 131:17). As a result of this limited time, counsel and Mr.

Washington addressed the allegations of failure to inform and deception in

a summary fashion:

Q. Did you ever not return phone calls of [Ms. Randle’s]?

A. No.

Q. Ever ignore her or refuse to make an appointment?

A. No, never refused to see her when she came by without

an appointment.

Q. Did you ever not provide her with a copy of the file if she

asked for one?

A. No. Whether she asked for it or not, I kept her informed—

I kept her informed of what was going on because the

case was important to me because I can imagine what it’s

like to lose a child. . . .

Q. Did you ever tell her that the—there were no problems

with the case, everything was going smoothly, even

though the case had been dismissed and you appealed it?

A. There were problems with this case from the beginning.

From day one there were—and I told her what the

problems were.

Q. In fact, you would receive calls from not just Ms. Carter

and Mr. Gobert and Mr. Black and the attorneys but from

the entire greater family would call regularly to find out,

when are we going to get our money?
19

A. Everybody was looking for money. And some of them

didn’t have an interest, wasn’t going to get a dime

anyway, but they would still call. And I would talk to

them because I’m trying to keep the peace.

. . . .

THE COURT: Your time is up.

(4 RR 132:10-134:12).

While covering significant ground quickly, this testimony

nonetheless made clear that Mr. Washington informed his clients of the

case’s dismissal, along with the other issues in the case. This testimony was

not “evasive.” It was summary—a necessary tactic given the court-imposed

time constraints, and a reasonable one, given that Mr. Washington had

already expressly refuted the allegations of deceit and failure to inform.

The plain meaning and purpose of this testimony was to expressly

deny the Commission’s allegations of deceit. The jury certainly would have

understood the “problems” to which Mr. Washington referred in his

answer to be those expressly referenced by counsel in the question, i.e., that

“the case had been dismissed and [Mr. Washington] appealed it” (4 RR

133:6-:9). Indeed the question expressly referenced the very allegation of

deceit on which the Commission relies on appeal, i.e., that Mr. Washington
20

told Mr. Gobert and Ms. Randle that “there were no problems with the case

[and] everything was going smoothly [following the dismissal]” (4 RR

133:6-:9).

To lift this quote from the context of the entire trial and say that it

does not amount to a denial of the Commission’s allegations of deceit

blinks at reality. The entire purpose of the question and answer was to

comprehensively and forcefully deny these very allegations. Mr.

Washington’s statement amounts to such a denial on its face and no juror

could have construed the statement as anything other than a denial of the

allegations referenced in the question.

In this way, far from offering “no evidence,” Mr. Washington directly

refuted the Commission’s allegations of deceit. Thus, as Mr. Washington

has repeatedly argued, the case was a credibility contest, and Mr.

Washington’s inability to introduce evidence of his truthful character was

profoundly harmful.

III. THERE WAS NOTHING PARTICULARLY “COMPELLING” ABOUT MR.

GOBERT AND MS. RANDLE’S TESTIMONY THAT WOULD HAVE RENDERED

EVIDENCE OF MR. WASHINGTON’S CHARACTER INCONSEQUENTIAL.

The Commission also suggests that any character evidence could not

have swayed the jury’s vote because Mr. Gobert and Ms. Randle’s
21

testimony was somehow particularly compelling (Comm’s Br. at 17-23).

This argument ignores the presiding juror’s testimony that she and other

jurors questioned whether Mr. Gobert had perjured himself (7 RR 146:8-

:25).

That the jury split on whom to believe without Mr. Washington

introducing any character evidence demonstrates that the introduction of

such evidence would have shifted the jury’s verdict. Indeed, had Mr.

Washington been able to present himself as the legal luminary that he is

instead of the “old and cocky or arrogant” practitioner as misportrayed by

erroneously admitted suspension evidence and Gobert and Randle’s

testimony, the jury likely would have changed its verdict (7 RR 139:8-:14).

In any event, given juror testimony that Mr. Gobert was barely

believed, the Commission’s argument that his testimony and that of Ms.

Randle could not have been overcome with support from character witness

should be rejected.
22

IV. THE RECORD, VIEWED AS A WHOLE, ESTABLISHES THAT MR.

WASHINGTON WOULD HAVE INTRODUCED COMPELLING AND

OVERWHELMING CHARACTER EVIDENCE IF PERMITTED TO DO SO.

The Commission also attempts to diminish the magnitude of Mr.

Washington’s character evidence by focusing upon the one witness that

Mr. Washington presented to make his bill of exception in the trial court.

In doing so, the Commission largely ignores its stipulation that, if

permitted, Mr. Washington “[would have] call[ed] a series

of . . . individuals [who] would [have] provide[d] substantially similar

testimony about Mr. Washington’s character and reputation for truth and

his veracity, honesty and plain dealing” (see 4 RR 228:14-:24). This Court

must—at the least—take this stipulation at face value and conclude that

Mr. Washington would have called a number of other individuals who

would have similarly bolstered his credibility.

In considering who these individuals might have been, what they

might have said, and whether their exclusion was harmless error, this

Court must review “the entire record to determine whether the [erroneous

exclusion of character evidence] probably caused the rendition of an

improper judgment.” Thota v. Young, 366 S.W.3d 678, 693 (Tex. 2012);
23

This record includes a voluminous amount of good character

evidence that Mr. Washington introduced in the sentencing phase. Mr.

Washington’s principal brief cited and discussed that evidence at length.

The Commission’s contention that this evidence is irrelevant to the

harmless error analysis requires that this Court turn a blind eye to the

record evidence and ignores both the parties’ stipulation and the broad

scope of harmless error review that the Texas Supreme Court proscribes.

As a practical matter, requiring Mr. Washington to call every individual

character witness in support of his bill of exception would have defeated

the purpose of the summary stipulation to which the parties agreed. The

record contains evidence of precisely the nature and scope of the good

character testimony that Mr. Washington would have presented.

Consistent with this Court’s obligation to review the entire record when

assessing harm, the Court should not disregard this compelling evidence.

See Reliance Steel & Aluminum Co. v. Sevcik, 267 S.W.3d 867, 871 (Tex. 2008)

(when analyzing harmless error, “[a] reviewing court must evaluate the

whole case from voir dire to closing argument, considering the state of the

evidence, the strength and weakness of the case, and the verdict.”).
24

V. EVIDENCE OF MR. WASHINGTON’S EXCELLENT REPUTATION WAS ALSO

ADMISSIBLE TO SUPPORT HIS CREDIBILITY AS A WITNESS.

While essentially conceding that the trial court erroneously excluded

Mr. Washington’s character evidence under Rule 404(a)(1)(B), the

Commission devotes significant briefing to arguments that either (1) the

trial court properly excluded the evidence under Rule 608(a) or (2) Mr.

Washington failed to preserve error regarding this basis for admission of

the evidence.

In focusing on the admissibility of the evidence under Rule 608(a),

the Commission attempts to cabin the trial court’s error by arguing that

any good character evidence was admissible solely to determine Mr.

Washington’s substantive liability for deceit (Rule 404(a)(1)(B)), rather that

his credibility generally (Rule 608(a)).

This Court should reject the Commission’s invitation to so confine its

harm analysis. The evidence that Mr. Washington sought to introduce was

relevant and admissible as to his character for truthfulness generally. There

is no indication that, had the trial court admitted the evidence, the

Commission would have sought to limit its use. In addition, the evidence is
25

plainly admissible to determine Mr. Washington’s credibility as a witness

under Rule 608(a) and Mr. Washington preserved its admission on this

basis.

A. It would be inappropriate to assume that evidence of Mr.

Washington’s truthful character would not have altered the

verdict as to the other charges against Mr. Washington.

The Commission appears to argue that, even if character evidence

was admissible on the charge of deceit, it was not admissible—and

therefore could not provide a basis for reversal—with regard to the other

charges against Mr. Washington.

This attempt to limit an error that broadly undermined Mr.

Washington’s credibility to a single charge relies upon several implausible

assumptions, none of which the record the record supports:

1. It assumes that if the trial court had admitted the evidence

under Rule 404(a)(1)(B), the Commission would have requested

a limiting instruction that the evidence not be considered for

evaluating Mr. Washington’s honesty generally.

2. It assumes that, in response to this request, Mr. Washington

would not have clarified his statement that evidence of truthful

character was admissible across all allegations to rehabilitate

Mr. Washington as a witness.

3. It assumes that the trial court would have concluded

(incorrectly) that the evidence was admissible under Rule

404(a)(1)(B), but was not admissible under Rule 608(a).
26

4. It assumes that the trial court would have issued an instruction

that the jury was to consider Mr. Washington’s character only

for the purpose of determining whether Mr. Washington lied to

his clients, not for the purpose of determining whether Mr.

Washington’s was lying during testimony to the jury.

5. Finally, and perhaps most implausible of all, it assumes that the

jurors could engage in the mental gymnastics necessary to

compartmentalize this information in compliance with such an

instruction.

Rule of Appellate Procedure 44.1(b), allows this Court to isolate

harm, but only when it can do so “without unfairness to the parties.”

Cabining the erroneous exclusion of character evidence only to the charge

of deceit requires profoundly unfair speculation about how the parties

would have responded had the trial court admitted the character evidence

that the Commission now concedes was admissible.

The erroneous exclusion of Mr. Washington’s character evidence is

“baked in the cake.” The evidence was directly relevant to Mr.

Washington’s credibility, Mr. Washington sought to admit it for all

purposes, and the only reasonable conclusion is that the jury would have

considered it for all purposes.

As a result, in analyzing whether introduction of Mr. Washington’s

character evidence would have changed the jury’s verdict, this Court
27

should examine the conflicting evidence as to all of the charges against Mr.

Washington and reject the Commission’s speculative attempt to narrowly

limit the error’s consequences.

B. The Commission directly attacked Mr. Washington’s

credibility, which permitted him to introduce evidence of his

good character under Rule 608(a).

In addition, Mr. Washington expressly sought to introduce the

character evidence to rehabilitate the Commission’s attacks on his

character, and the trial court erred in refusing this request. The test for

admission of character evidence under Rule 608(a) “is whether a

reasonable juror would believe that a witness’s character for truthfulness

has been attacked by cross-examination, evidence from other witnesses, or

statements of counsel (e.g., during voir dire or opening statements).”

Michael v. State, 235 S.W.3d 723, 728 (Tex. Crim. App. 2007).

A reasonable juror could not construe the following statements (all of

which come from the Commission’s jury arguments) to be anything other

than what they were—direct attacks on Mr. Washington’s credibility:

 “[O]ur allegation is that Mr. Washington . . . was dishonest

with [his] clients” (3 RR 7:20-:23);
28

 “[Mr. Washington] misrepresented facts to [his clients], and he

deceived them into believing something that wasn’t--that

wasn’t what it was” (3 RR 7:20-8:1);

 “[T]hroughout all of it, [Mr. Washington] was dishonest,

deceitful, and misrepresented everything about the status of

this case” (3 RR 13:1-:5);

 “[Mr. Gobert and Ms. Randle] were especially hurt by Mr.

Washington’s dishonesty and deceit, and the fact that he had

misrepresented the status of the case to them . . .” (3 RR

12:9-:14);

 “He lied to you [(in a hypothetical scenario that called upon

jurors to place themselves in the shoes of Gobert and Randle)]”

(5 RR 10:25).

In particular, the statement that “[Mr. Gobert and Ms. Randle] were

especially hurt by Mr. Washington’s dishonesty and deceit” goes beyond

merely pointing to an isolated incident. The implication of the

Commission’s use of the possessive “Mr. Washington’s” is that dishonesty

and deceit are qualities belonging to or characterizing Mr. Washington.

In other words, the Commission did not refer simply to a single

statement that Mr. Washington made, but to traits, i.e., dishonesty and

deceit, that it contended he possessed. This is exactly the type of “attack”

on Mr. Washington’s character for truthfulness that permitted him to

introduce character evidence under Rule 608(a).
29

Indeed, if an entire trial accusing a testifying witness of “conduct

involving dishonesty, deceit, [and] misrepresentation” cannot be

characterized as an “attack” on the witness’s truthfulness, one struggles to

imagine what could be. And in addition to this substantive charge, the

Commission’s trial tactics certainly placed Mr. Washington’s character at

issue. Mr. Washington thoroughly discussed these attacks in his principal

brief at pages 22-26.

Mr. Washington’s counsel requested to introduce evidence of Mr.

Washington’s character to rehabilitate Mr. Washington’s credibility as a

witness. Rule 608(a) permitted Mr. Washington to introduce character

evidence for this purpose. As a result, this Court should not limit its harm

analysis of the exclusion of character evidence solely to the charge of

deceit, but should consider the broader impact of the exclusion on the

jury’s assessment of Mr. Washington’s credibility.

C. Mr. Washington’s counsel preserved rehabilitation of Mr.

Washington as a witness as a basis for admitting character

evidence.

As this Court has observed in other contexts, “a party need not recite

‘magic words’ or cite specific statutes to preserve a complaint for appeal.”

Wooten v. State, No. 03-11-00667-CR, 2013 WL 1831571, at *4 (Tex. App.—
30

Austin Apr. 24, 2013, pet. ref’d)); see also Barina v. Barina, No. 03-08-00341-

CV, 2008 WL 4951224, at *2 (Tex. App.—Austin Nov. 21, 2008, no pet.)

(“[T]he rules of appellate procedure do not require the use of magic words

to preserve error.”). To the contrary, to preserve error a party need only

“state[ ] the grounds for the ruling that the complaining party

sought . . . with sufficient specificity to make the trial court aware of the

complaint.” Tex. R. App. P. 33.1.

Here, after Mr. Washington raised the admissibility of character

evidence under Texas Rule of Evidence 404(a)(1)(B), the Commission

responded by attempting to distinguish Mr. Washington’s cited authority.

At that point, Mr. Washington offered an alternative basis for admission of

the evidence, saying:

I think the Bar opened the door to [evidence of Mr.

Washington’s truthful character] by attempting to impeach Mr.

Washington that he was lying and he was making claims and

allegations referencing that set of facts.

(4 RR 216:22-:25) (emphasis added).

This alternative basis explicitly focused on the credibility attacks that

Mr. Washington endured on the stand, not the substantive allegations

against him. By saying that the Commission’s impeachment opened the door
31

to character evidence, his counsel plainly presented to the Court an

alternative basis for character evidence that differed from that asserted

under Rule 404(a)(1)(B).

This interpretation is further supported by the fact that the Court had

already sustained the Commission’s objection to admission of the evidence

under Rule 404(a)(1)(B) when Mr. Washington’s counsel pressed for

admission of the evidence on the alternative ground of Mr. Washington’s

impeachment. Specifically, after the Commission argued that Mr.

Washington’s cited authorities were not “applicable to the case-in-chief of

this case at all since we’re not dealing with anything involving moral

turpitude,” the Court responded “Right.” (4 RR 216:3-:8). After the

Commission then further explained its position, Mr. Washington’s counsel

offered the alternative basis that the Commission had opened the door

through “impeach[ment] of Mr. Washington that he was lying and he was

making claims and allegations referencing that set of facts.” (4 RR 216:22-

:25).

Though the Commission appears to contend that this statement

merely further asserted an argument for introduction of the evidence under

404(a)(1)(b), seeking to introduce good character evidence based upon
32

impeachment is an invocation of Rule 608(a). Rule 608(a) provides for the

admission of good character evidence whenever the witness’s credibility

has been “attacked.” See Tex. R. Evid. 608(a) (“[E]vidence of truthful

character is admissible only after the witness’s character for truthfulness

has been attacked.”).

But acts like impeachment, cross-examination, and insinuations that a

witness is “lying” and “making claims and allegations” provide no basis

whatsoever to admit character evidence under Rule 404(a)(1)(B). Indeed,

Rule 404(a)(1)(B) applies only when “a party [in a civil case is] accused of

conduct involving moral turpitude” (emphasis added). The Commission’s

impeachment of Mr. Washington on the stand and insinuation that he was

falsely testifying could never alter the underlying conduct of which the

Commission accused him.

Thus, prior impeachment cannot be characterized as an argument for

admitting evidence under Rule 404(a)(1)(B). Indeed, if Mr. Washington’s

trial counsel had never mentioned Rule 404(a)(1)(B), but had simply said—

as he did following the Rule 404(a)(1)(B) discussion—“the Bar opened the

door to [good character for truthfulness evidence] by attempting to

impeach Mr. Washington that he was lying and he was making claims and
33

allegations referencing that set of facts” (4 RR 216:22-25), no one could

colorably argue that this statement raised Rule 404(a)(1)(B). Everyone

would agree that this statement referred—as it did in this case—to

rehabilitation under Rule 608(a).

Counsel’s impeachment statement has nothing whatsoever to do

with the substantive allegations against Mr. Washington that opened the

door under 404(a)(1)(B). Instead, it focuses exclusively on the attack that his

credibility sustained over the course of his examination. In making this

statement, Mr. Washington thus identified a fact that rendered character

evidence admissible under Rule 608(a), but was completely irrelevant to

the analysis under 404(a)(1)(B).

It also bears note that the testimony Mr. Washington sought to

introduce—“testimony about Mr. Washington’s character and reputation

for truth and veracity, honesty and plain dealing” (see 4 RR 228:14-:24)—

was admissible both under Rule 404(a)(1)(B) and under Rule 608(a).

Character for truthfulness not only directly addressed the Commission’s

moral turpitude allegations, but also served to bolster Mr. Washington’s

credibility as a witness. The evidence was thus cross-admissible for both
34

purposes, further evidencing that counsel’s statement raised both bases for

admission.

Mr. Washington’s interpretation of his counsel’s statement thus

renders the statement a sensible, timely, and relevant objection. The

Commission’s, by contrast, renders it an irrelevant sidebar. This Court’s

obligation to liberally construe objections to avoid waiver supports Mr.

Washington’s interpretation that the statement preserved Rule 608(a)’s

invocation. See Arkoma Basin Exploration Co., Inc. v. FMF Associates 1990-A,

Ltd., 249 S.W.3d 380, 388 (Tex. 2008) (“Like all other procedural rules, those

regarding the specificity of post-trial objections should be construed

liberally so that the right to appeal is not lost unnecessarily.”).

For all of these reasons, counsel’s statement cannot be understood as

further argument that the trial court should admit the evidence under Rule

404(a)(1)(B)—an argument that the trial court had already rejected. Instead,

the statement must be understood as what it was, an invocation of the

alternative justification for admitting character evidence. The Commission

had attacked Mr. Washington’s character for truthfulness, opening the

door under Rule 608(a). Mr. Washington’s counsel “stated the grounds for

[admitting character evidence under Rule 608] . . . with sufficient specificity
35

to make the trial court aware of the complaint.” See Tex. R. App. P. 33.1.

Mr. Washington preserved this basis for admitting the evidence, and the

trial court erred in excluding the use of the evidence for this purpose. This

Court should therefore consider the harm of excluding the evidence that

resulted from the jury’s misimpression about Mr. Washington’s character

for truthfulness as well as in the context of the specific allegation of deceit.

VI. MR. WASHINGTON STANDS ON HIS PRIOR BRIEFING WITH REGARD TO

HIS REMAINING ARGUMENTS.

In response to the Commission’s other arguments, and without

waiving any points raised in his initial brief, Mr. Washington stands on his

initial briefing.

Prayer

Craig A. Washington asks this Court to reverse the trial court’s

judgment and grant him a new trial along with any other relief to which he

has shown himself entitled.
36

Respectfully submitted,

/s/ Michael A. Stafford

Michael A. Stafford

Texas Bar No. 18996970

mstafford@gardere.com

Katharine D. David

Texas Bar No. 24045749

kdavid@gardere.com

Stacy R. Obenhaus

Texas Bar No. 15161570

sobenhaus@gardere.com

John MacVane

Texas Bar No. 24085444

jmacvane@gardere.com

Gardere Wynne Sewell LLP

1000 Louisiana, Suite 2000

Houston, Texas 77002

Tel: 713.276.5500

Fax: 713.276.5555

COUNSEL FOR APPELLANT

CRAIG A. WASHINGTON
37

Certificate of Service

I certify that this document was served on the following counsel on

November 19, 2015, through this court’s electronic filing/service system:

Cynthia Canfield Hamilton

Office of the Chief Disciplinary Counsel

State Bar of Texas

Post Office Box 12487

Austin, Texas 78711

chamilton@texasbar.com

/s/ John MacVane

John MacVane

Certificate of Compliance

I certify that this document contains 5,509 words, apart from those

parts of the brief excluded by Texas Rule of Appellate Procedure 9.4(i)(1). I

relied on the computer program used to prepare the document to

determine the number of words.

/s/ John MacVane

John MacVane

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