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    Logan Myles ROBINSON, Appellant, v. The STATE of Texas, State.
    No. 2-09-027-CR.
    Court of Appeals of Texas, Fort Worth.
    April 1, 2010.

      Richard Alley, Fort Worth, for appellant.
    Joe Shannon, Jr., Criminal District Attorney, Charles M. Mallín, Assistant Criminal District Attorney, Chief of Appellate Section, Andy Porter, Christy Jack & Lloyd Whelchel, Assistant Criminal District Attorneys, Fort Worth, for State.
    PANEL: LIVINGSTON, DAUPHINOT, and WALKER, JJ.
   OPINION

TERRIE LIVINGSTON, Justice.

Through two points of error, appellant Logan Myles Robinson appeals his conviction and thirteen-year sentence for sexual assault. See Tex. Penal Code Ann. § 22.011 (Vernon Supp. 2009). We affirm.

Background Facts

In 2005, a Tarrant County grand jury indicted Robinson for sexually assaulting Angela, his ex-wife. The parties filed various pretrial documents, and then under a plea bargain with the State, Robinson pled guilty, waived certain constitutional and statutory rights, and entered a judicial confession. The trial court deferred its adjudication of Robinson’s guilt, placed him on ten years of community supervision, and delineated several conditions of the community supervision.

In 2007, the State petitioned the trial court to proceed to its adjudication of Robinson’s guilt. The State amended its petition in 2008; the amended petition alleged that Robinson had violated his community supervision conditions by committing a new offense, not maintaining suitable employment, not notifying law enforcement that he changed addresses, failing to pay certain costs and fees associated with his case, and not attending sex offender treatment. In the hearing on the State’s amended petition, Robinson pled true to failing to pay costs and fees and pled not true to the other allegations. The State called witnesses to testify about the allegations in the petition that Robinson had not pled true to. The trial court found all of the allegations true, convicted Robinson of sexual assault, and after hearing evidence related to his punishment, assessed thirteen years’ confinement. Robinson filed his notice of this appeal.

Robinson’s Points of Error

In Robinson’s two points, which he briefs together (and which we will therefore resolve together), he argues that the trial court erred by limiting his cross-examination of Angela during the adjudication hearing, by refusing to grant a continuance to secure Angela’s testimony during the punishment hearing after he attempted but failed to subpoena her, and by adjudicating him guilty. Robinson contends that the trial court should have allowed his questioning of Angela regarding details of the underlying sexual assault because he was trying to establish his innocence in accordance with an application for a writ of habeas corpus that he had filed.

The limitation of cross-examination during the adjudication hearing

Robinson first contends that the trial court erred by limiting his cross-examination of Angela during the adjudication hearing on the State’s amended petition. He specifically argues that the court denied his due process rights of cross-examination and confrontation.

The State called Angela to testify about the first paragraph of its amended petition to adjudicate. When Robinson attempted to cross-examine Angela about details of the sexual assault rather than issues related to the State’s amended petition, the State objected on relevance grounds and the trial court indicated that it was not going to allow any questioning regarding the underlying offense during the adjudication hearing. The trial court told Robinson’s counsel, however, that he could go into the merits of the writ application and call Angela as a witness during the punishment portion of Robinson’s trial. Robinson’s counsel indicated his acceptance of that solution and told the court that he had no more questions for Angela at that time.

The Sixth Amendment gives a defendant the right to be confronted with the witnesses against him. U.S. Const, amend. VI; Crawford v. Washington, 541 U.S. 86, 42, 124 S.Ct. 1354, 1359, 158 L.Ed.2d 177 (2004). And that right includes the qualified right to cross-examine those witnesses. See Davis v. Alaska, 415 U.S. 308, 315-16, 94 S.Ct. 1105, 1110, 39 L.Ed.2d 347 (1974); Hammer v. State, 296 S.W.3d 555, 561 (Tex.Crim.App.2009); Walker v. State, 300 S.W.3d 836, 844-46 (Tex.App.-Fort Worth 2009, pet. ref'd) (citing Lopez v. State, 18 S.W.3d 220, 222 (Tex.Crim.App.2000)).

However, to preserve a complaint for our review, a party must have presented to the trial court a timely request, objection, or motion that states the specific grounds for the desired ruling if they are not apparent from the context of the request, objection, or motion. Tex.R.App. P. 33.1(a)(1); Mosley v. State, 983 S.W.2d 249, 265 (Tex.Crim.App.1998) (op. on reh’g), cert. denied, 526 U.S. 1070, 119 S.Ct. 1466, 143 L.Ed.2d 550 (1999). Further, the trial court must have ruled on the request, objection, or motion, either expressly or implicitly, or the complaining party must have objected to the trial court’s refusal to rule. Tex.R.App. P. 33.1(a)(2); Mendez v. State, 138 S.W.3d 334, 338, 341 (Tex.Crim.App.2004).

Preservation of error is a systemic requirement that this court should review on its own motion. Archie v. State, 221 S.W.3d 695, 698 (Tex.Crim.App.2007). Preservation requirements apply to confrontation clause complaints. See Reyna v. State, 168 S.W.3d 173, 179-80 (Tex.Crim.App.2005); Paredes v. State, 129 S.W.3d 530, 535 (Tex.Crim.App.2004) (overruling the appellant’s constitutional confrontation clause points because he did not preserve error related to the confrontation clause at trial); Campos v. State, 186 S.W.3d 93, 98 (Tex.App.-Houston [1st Dist.] 2005, no pet.) (explaining that the “right of confrontation is vital to an ordered criminal justice system, but it is nonetheless a trial right, and a defendant waives his right to confront witnesses if he does not object at trial”); Courson v. State, 160 S.W.3d 125, 129 (Tex.App.-Fort Worth 2005, no pet.).

Robinson did not assert any constitutional violation — related to the confrontation clause, the related right of cross-examination, or otherwise — when the trial court told him that he would not be permitted to ask Angela questions about the sexual assault during the adjudication hearing. The dissenting opinion correctly indicates that the code of criminal procedure does not require a separate punishment hearing during an adjudication proceeding and that, functionally, an adjudication proceeding is unitary. See Euler v. State, 218 S.W.3d 88, 92 (Tex.Crim.App.2007); Griffith v. State, 166 S.W.3d 261, 265 (Tex.Crim.App.2005); Dissenting Op. at 580-81. But that legal principle is irrelevant to this case because Robinson did not object to the trial court’s continuing or segregating his adjudication proceeding and has not raised such as error on appeal. Rather, Robinson consented to the trial court’s continuance of the punishment hearing from October 2008 to January 2009 because he requested a presen-tence investigation report to be prepared before the trial court ordered the terms of its sentence. And Robinson obviously recognized the need to ensure his witnesses’ presence at the hearing in January 2009 because he sought subpoenas for two witnesses, including Angela.

The dissenting opinion has not disputed that Robinson was required to preserve confrontation clause complaints and that he did not do so. Based on the authority cited above, we hold that Robinson forfeited his assertion that his rights were violated during the adjudication hearing, and we overrule that part of his two points.

The absence of Angela’s testimony during the punishment hearing

The punishment hearing in Robinson’s trial was held in January 2009, almost three months after the trial court found him guilty in October 2008. On January 23, 2009, Robinson filed an application to subpoena Angela to appear at the punishment hearing, but the application did not include her location or any of her contact information. At the beginning of the punishment hearing, Robinson’s counsel told the court that Angela had not been served with the subpoena but that his investigator had talked to Angela. Robinson’s counsel orally requested a continuance to find Angela so that she could provide testimony that would support his writ application and mitigate his punishment by showing the “severity of the effect upon the victim.” Robinson contends on appeal that the trial court erred by denying the continuance.

The code of criminal procedure provides, “A criminal action may be continued on the written motion of the State or of the defendant, upon sufficient cause shown.” Tex.Code Crim. Proc. Ann. art. 29.03 (Vernon 2006) (emphasis added). Accordingly, the denial of an oral motion for continuance preserves nothing for our review. Anderson v. State, 301 S.W.3d 276, 278-81 (Tex.Crim.App.2009) (holding that a court of appeals erred by applying a due process exception to the motion for continuance preservation requirement and concluding that the “right to present a defense is subject to forfeiture”); Williams v. State, 172 S.W.3d 730, 733 n. 1 (Tex.App.-Fort Worth 2005, pet. ref'd); Ricketts v. State, 89 S.W.3d 312, 317 (Tex.App.-Fort Worth 2002, pet. ref'd) (citing Dewberry v. State, 4 S.W.3d 735, 755 (Tex.Crim.App.1999), cert. denied, 529 U.S. 1131, 120 S.Ct. 2008, 146 L.Ed.2d 958 (2000)).

As the dissent argues, article 29.13 of the code of criminal procedure provides,

A continuance or postponement may be granted on the motion of the State or defendant after the trial has begun, when it is made to appear to the satisfaction of the court that by some unexpected occurrence since the trial began, which no reasonable diligence could have anticipated, the applicant is so taken by surprise that a fair trial cannot be had.

Tex.Code Crim. Proc. Ann. art. 29.13 (Vernon 2006); see Dissenting Op. at 583. But this provision does not address or remove the requirement that a motion for continuance must be in writing. The court of criminal appeals and our court have both applied the in-writing requirement to motions for continuance filed during a trial. See Dewberry, 4 S.W.3d at 755-56; Matamoros v. State, 901 S.W.2d 470, 478 (Tex.Crim.App.1995); Woodall v. State, 77 S.W.3d 388, 401 (Tex.App.-Fort Worth 2002, pet. ref'd); see also Tex.Code Crim. Proc. Ann. art. 29.08 (Vernon 2006) (stating that “[a]ll motions for continuance must be sworn to”) (emphasis added); Dixon v. State, 64 S.W.3d 469, 473 (Tex.App.-Amarillo 2001, pet. ref'd) (stating that an “oral motion for continuance during trial does not preserve error for appellate review, even in the face of an assertion that the Court’s equitable powers allow consideration of the issue”).

Therefore, we hold that Robinson’s oral motion for continuance preserved nothing for our review, and we overrule that portion of his two points.

The trial court’s decision to adjudicate Robinson guilty

Finally, in the title of one of Robinson’s points of error, he argues that the trial court “abused its discretion in adjudi-eating [him] guilty.” However, he does not specify why the trial court abused its discretion beyond his assertions about his constitutional rights and his oral continuance request, which we have already resolved. Furthermore, Robinson has not directly challenged the sufficiency of the evidence to prove the allegations contained in the State’s amended petition. Although he cites law in a portion of his brief related to a trial court’s ability to revoke community supervision for failure to pay fees when the defendant is unable to pay, he did not present inability to pay as a defense at trial. Because Robinson’s general contention that the trial court abused its discretion by adjudicating him guilty is inadequately briefed, we overrule that portion of his two points. See Tex.R.App. P. 38.1(i); Tong v. State, 25 S.W.3d 707, 710 (Tex.Crim.App.2000), cert. denied, 532 U.S. 1053, 121 S.Ct. 2196, 149 L.Ed.2d 1027 (2001); Harkins v. State, 268 S.W.3d 740, 742 n. 2 (Tex.App.-Fort Worth 2008, pet. ref'd).

Conclusion

Having overruled both of Robinson’s points, we affirm the trial court’s judgment.

DAUPHINOT, J. filed a dissenting opinion.

LEE ANN DAUPHINOT,

Justice, dissenting.

I write separately because I cannot agree with the majority that Appellant somehow forfeited his right to offer evidence of actual innocence or mitigation evidence.

A revocation is a unitary proceeding. As our sister court in Dallas has explained,

When a person enters a plea of guilty, the proceeding becomes a unitary proceeding. This applies regardless of whether the plea is entered before a judge or a jury. As the court of criminal appeals has noted, once an appellant enters a guilty plea, the court should conduct the trial as a unitary proceeding rather than allowing the defendant to “piecemeal” his plea of guilty and true.

When a defendant pleads guilty to a criminal offense and is placed on community supervision after the judge defers adjudication, the trial becomes a unitary proceeding. The Texas Court of Criminal Appeals has explained,

The bifurcated-trial procedure that the district court used is not authorized in a trial without a jury. Prior to the 1965 Code of Criminal Procedure all trials before the court or jury regardless of plea were unitary trials; that is, the issues of guilt and punishment were submitted at the same time. A bifurcated trial procedure was authorized in the 1965 revision of the Code of Criminal Procedure. The bifurcation statute provides, “In all criminal cases, other than misdemeanor cases of which the justice court or municipal court has jurisdiction, which are tried before a jury on a plea of not guilty, the judge shall, before argument begins, first submit to the jury the issue of guilt or innocence of the defendant of the offense or offenses charged, without authorizing the jury to pass upon the punishment to be imposed.” The bifurcation statute is applicable only to pleas of not guilty before a jury. The statute has no application to a trial before the court on a plea of not guilty. This is not the first case in which courts have failed to notice that the bifurcation statute applies only to pleas of not guilty before a jury.
[S]ome confusion has existed among the bench and bar since the advent of Article 37.07. Records reaching this court frequently show courts bifurcating bench trials where the plea is guilty. Often the court will hear evidence, declare the defendant guilty, order a pre-sentence investigation and sometimes months later re-convene the “penalty stage” of the guilty plea, allowing the State and defense to offer evidence as to punishment or guilt.

Contrary to the thoughtful majority’s repeated designation of separate phases or portions of the trial, there was only a single, unitary proceeding. Consequently, no one returned to court for a punishment portion or phase or segment or part of the trial. If, as the majority insists, the participants did return for a punishment portion or segment or part, then the trial court committed error by bifurcating a unitary proceeding.

The effect of the trial’s becoming a unitary proceeding is that the issues of guilt and punishment cannot be separated. The trial court therefore erred by denying Appellant his constitutional Sixth Amendment right to cross-examine the State’s witness and by requiring Appellant to wait for the “punishment phase” in a unitary proceeding that had no punishment phase. I can find no law that requires a party to a lawsuit, and certainly a criminal lawsuit, to issue a subpoena to a witness who is present in the courtroom, under oath, and subjected to direct examination by the opposing party in order to cross-examine that witness. The Texas Court of Criminal Appeals has explained repeatedly that

[Qairness would dictate that a defendant be accorded an opportunity to offer appropriate evidence in mitigation of punishment after the revocation of probation and the adjudication of guilt and before the assessment of punishment if such evidence has not already been elicited during the proceedings, particularly if the defendant requests the opportunity.

Here, the trial court was well aware that Appellant wanted to fully cross-examine the witness in order to offer evidence of actual innocence or mitigation evidence that lessened his moral culpability. He attempted to offer this evidence in cross-examination of the State’s witness. The trial court refused to allow him to develop this evidence on cross-examination and told Appellant that he would have to wait until the “punishment phase.” The witness was never released. Indeed, when the trial court asked if the witness could be released before Appellant had the opportunity to complete cross-examination, the prosecutor responded, “I’d ask she stick around, Judge.”

As this court has previously explained,

We review the trial court’s decision to exclude evidence under an abuse of discretion standard. An abuse of discretion occurs when the trial court acts without reference to any guiding principles or rules.
Where the excluded evidence is sought during cross-examination, the Confrontation Clause of the United States Constitution is implicated. Errors of this sort are subject to a harm analysis, and must be reversed unless the court finds, beyond a reasonable doubt, that the error did not contribute to the conviction or punishment.

But denial of the right to cross-examine witnesses may also be a due process violation when it prevents a defendant from offering evidence of actual innocence or punishment mitigation evidence and brings into question the fundamental fairness of a trial. As the Texas Court of Criminal Appeals has so eloquently explained,

Due process does not lend itself to simple, concise definitions. In its most basic sense due process is the impediment that is constitutionally imposed on governmental conduct that offends our fundamental rights. Relative to the protection of one’s liberty: “[t]he essential guarantee of the due process clauses is that the government may not imprison or otherwise physically restrain a person except in accordance with fair procedures.” In other words, due process is in itself essentially the same as fairness. Or, at the very least, due process is the vehicle used to arrive at fairness thereby protecting our fundamental rights. Accordingly, “a fair trial in a fair tribunal is a basic requirement of due process.” If legislation alters the essential fairness of a trial then a due process violation is necessarily implicated. In Estelle v. Williams [425 U.S. 501, 96 S.Ct. 1691, 48 L.Ed.2d 126 (1976) ], it was specifically stated that “[t]he right to a fair trial is a fundamental liberty secured by the Fourteenth Amendment.”

Or, in other words,

The touchstone of due process is fundamental fairness. Accordingly, no State may deprive any person of the conditional liberty created by probation unless the State employs procedures that are fundamentally fair.

In its conscientious analysis, the majority concentrates on the propriety of the trial court’s bifurcating the proceeding rather than on the trial court’s refusal to allow Appellant to offer mitigating evidence or evidence of actual innocence when the State’s witness was in court, on the stand, and available for cross-examination. The majority holds that this error is harmless because Appellant failed to use the magic words “confrontation and cross-examination.” Appellant was in the middle of cross-examination. He tried to complete his cross-examination. The State objected, and the trial court sustained the objection on the basis that Appellant had to wait until the “punishment phase” to offer his punishment evidence. No one was confused about what Appellant was requesting or why.

The error was less a Sixth Amendment issue than a due process issue. It cannot be said that Appellant did not clearly voice his complaint or that anyone — the trial court, the State, or this court — was and is not fully aware of Appellant’s complaint. He tried to offer evidence in mitigation of punishment or evidence of actual innocence, and he was not allowed to do so. He was therefore denied fundamental due process. “The Due Process Clause of the Fourteenth Amendment prohibits criminal rules or procedures that offend traditional notions of fair play and substantial justice.”

The proper analysis of this error is under rule 44.2(a) because the error is of constitutional dimension. It is of constitutional dimension, in part, because denial of the constitutional right to complete cross-examination of a witness in order to present evidence in mitigation of punishment or evidence of actual innocence is also a denial of due process. It is difficult to understand how denying Appellant the opportunity to present evidence of actual innocence, or even evidence in mitigation of moral culpability, could be harmless error under the facts of this case.

Nor can I agree that Appellant, who had no obligation to subpoena the witness in order to claim his right to cross-examine, can be faulted for failing to file a written, sworn motion for continuance. Although the written, sworn motion is required for a pre-trial continuance request, after trial begins,

A continuance or postponement may be granted on the motion of the State or defendant after the trial has begun, when it is made to appear to the satisfaction of the court that by some unexpected occurrence since the trial began, which no reasonable diligence could have anticipated, the applicant is so taken by surprise that a fair trial cannot be had.

Presumably, the legislature realized that a party who is surprised during trial does not show up in the courtroom with a prepared motion for continuance complete with affidavit on the off chance that something unexpected will occur. Surely the trial court’s assuring Appellant that he would be allowed his constitutional right to complete his cross-examination of the State’s witness in order to offer punishment mitigation evidence or evidence of actual innocence after the trial court improperly bifurcated a unitary proceeding would be an unexpected occurrence triggering article 29.13 protections. And surely a defendant in a criminal trial has the right to rely on the trial court’s promise.

We have not yet reduced our criminal trials to triumphs of form over substance. The grounds for the request for continuance were clear and uncontroverted. Appellant made his request in open court and on the record. The request was taken down by the court reporter and appears in the reporter’s record. If Appellant had been requesting a jury instruction, the writing requirement would have been satisfied by dictating it into the record. Yet the majority holds that because the request for continuance appears in the reporter’s record instead of being handwritten on a yellow legal pad, it is no motion at all. And the majority also holds that when the court, the State, and the defendant all know the basis of a request for continuance — and that basis is clear and uncontro-verted — and both sides argue the motion to the trial court, that nothing has been preserved for review.

The majority relies on Anderson v. State for the proposition that the denial of an oral motion for continuance preserves nothing for review and notes that the Texas Court of Criminal Appeals holds that the court of appeals erred by applying a due process exception. But the facts of this case distinguish it from Anderson. That case involves a pretrial motion for continuance, not a trial court’s deliberate truncation of an appellant’s cross-examination of a witness and erroneous and false assurance that the cross-examination would continue in a later, fictitious “punishment phase.”

Our sister court in Texarkana has addressed this issue in a manner which I believe comports with constitutional mandates:

The purpose of requiring a sworn motion is to give credibility to the basis for the continuance. This would seem unnecessary when a matter is fully before the trial court. In this situation, the trial court would not need sworn pleadings to support the motion, but could consider testimony and support of the motion or the facts already before the court. A mandatory rule that all continuances must be in writing is a harsh requirement on parties in trial at the time the matter arising for which the continuance is sought. To have an opportunity to place the motion in writing and have it sworn to would sometimes require a delay of the trial until that matter could be completed, and the trial could often be expedited by allowing this motion to be oral and recorded by a court reporter.

Although the Rodriguez court affirmed the action of the trial court, the statutory requirement of a sworn motion for continuance does not supercede the constitutional requirement of a fair trial. This fact has been recognized by our sister court in Dallas and by the Supreme Court of Texas.

In Thrower v. Johnston, the trial counsel had a preferential setting in a different court in a different county. The trial court denied Thrower’s unverified request to reset the case and defaulted Thrower when his counsel did not appear at the scheduled time but arrived in court as quickly as he could, given the conflict. In reversing the trial court, the Dallas Court of Appeals pointed out that

the want of verification does no more than raise or reinforce the presumption that the trial court committed no abuse of discretion. Considering the information that was provided to the court below of the conflict in district and county court settings, we hold that appellants rebutted the presumption that the trial court did not abuse its discretion, a burden placed upon them by the foregoing rules.

In reversing the trial court, the Thrower court relied on the Supreme Court of Texas’s decision in Villegas v. Carter. In Villegas, the trial court allowed counsel to withdraw two days before trial. Villegas was unable to engage counsel who could be prepared for trial in such short time, especially in light of the fact that the first attorney refused to turn over the file. The Villegas court balanced the valuable right to be represented by counsel in a civil case against the abuse of discretion standard and held that the trial court abused its discretion when it allowed counsel to withdraw two days before trial and then denied Villegas’s unsworn and apparently oral motion for continuance. The court suggested that in determining whether the trial court abused its discretion in denying the unsworn motion for continuance, we consider the role that the trial court played in creating the basis for the request for continuance. The Villegas court implies that it is fundamentally unfair to require a person to go to trial without a lawyer when the trial court both allowed counsel to withdraw at the eleventh hour and denied the non-compliant request for continuance.

The law governing motions for change of venue is also instructive:

A defendant’s proper motion to change venue entitles him to a change of venue as a matter of law unless the State files controverting affidavits. The reason for this rule is that “in the absence of controverting evidence, there is no issue of fact to be resolved.” However, this right is waived by the defendant if he participates in a hearing on the merits of the motion and allows the State to put on evidence in such hearing, consequently rendering the issue one of fact for determination by the trial court.

In the instant case, there is no issue in controversy. The issue was presented to the trial court when the witness took the stand and when the witness failed to appear. Both the State and Appellant participated in arguing the request to the trial judge. Requiring Appellant to request a recess while he reduced what was already taken down by the court reporter at both hearings to a handwritten, yellow-pad motion when the witness failed to appear, and requiring Appellant to write out an affidavit stating what everyone was aware of and what was completely uncontroverted, frankly, is not rational. When the interests of due process and technical compliance with a rule that should be satisfied by allowing either the State or the defendant to dictate a motion or request into the record in satisfaction of a writing requirement conflict, the due process interest must prevail.

Whether an oral, unsworn motion for continuance is different from a -written, sworn motion for continuance, in that one is an equitable motion and the other is a statutory motion, is the subject of conflicting opinions. But courts are in agreement that an improper denial of a motion for continuance may constitute a denial of due process. In a Fifth Circuit case, the court explained, in the context of the impact of the denial of a continuance on the right to counsel,

Initially, the determination of when to allow a continuance is committed to the deliberate discretion of the trial judge. The trial judge must steer clear of the Scylla and Charybdis of extremes. At one extreme, “a myopic insistence upon expeditiousness in the face of a justifiable request for delay can render the right to counsel an empty formality.” ... While discretion is the rule of general application grounded in precedent, tradition and common sense, discretion can be abused. Viewing all the circumstances surrounding the trial court’s decision, in the unusual case the denial of a continuance may be so arbitrary and so fundamentally unfair as to do violence to the Constitutional principle of due process.

In the case now before this court, any delay was occasioned by the trial court’s action in refusing to allow Appellant to complete cross-examination of the State’s witness immediately after direct examination.

I recognize that the issue may become moot if Appellant receives habeas relief, but I cannot agree with the majority’s holding, explicit or implicit, that the trial court properly bifurcated the adjudication proceeding and that Appellant was required to subpoena the witness before being allowed to cross-examine her despite the State’s having conducted its direct examination of her and the trial court’s never releasing her. I therefore respectfully dissent.

      . Robinson was married to Angela at the time of the assault, but they are now divorced.

      . During the punishment hearing, the State presented a presentence investigation report, and Robinson called his sister and his mother, among other witnesses.

      .None of Robinson’s points of error, his notice of appeal, nor his two motions for new trial expressly challenge the trial court's decision to deny his writ application.

      . Robinson mentioned the rights of confrontation and cross-examination in his second motion for new trial, but he related those rights to the use of hearsay statements in the presen-tence investigation report and not to any issues occurring in the adjudication hearing.

      . Regardless of whether Robinson's petition to adjudicate hearing should have occurred in two phases, it is indisputable that it did occur in two phases — occurring months apart — because of Robinson’s request that the probation department prepare a presentence investigation report. The dissenting opinion's statement that "no one returned to court for a punishment portion ... of the trial” is not supportable under the record in this case. Dissenting Op. at 581.

      . The dissenting opinion's statement and conclusion that the trial court denied Robinson due process because it prevented his opportunity to offer appropriate evidence simply is not borne out by this record. See Dissenting Op. at 581-83. The trial court expressly agreed to let Robinson call Angela to testify about the nature of Robinson's offense during the upcoming punishment portion of the trial rather than in the initial revocation portion, and Robinson's counsel did not object to that solution (by citing the 6th Amendment or the Constitution generally, using the word "confrontation,” or in any other way); instead he indicated his acceptance of the solution. Then, although Robinson had nearly three months to serve a subpoena and guarantee Angela's presence at the punishment portion, he did not serve her with the subpoena so she did not appear.

      .The State did not subpoena Angela for her testimony at the adjudication hearing or the punishment hearing. See Tex.Code Crim. Proc. Ann. art. 24.03(a) (Vernon 2009) (stating that when "a witness has been served with a subpoena, attached or placed under bail at the instance of either party in a particular case, such execution of process shall inure to the benefit of the opposite party in such case in the event such opposite party desires to use such witness on the trial of the case”). Nothing in the record indicates that the trial court interfered with Robinson’s attempt to subpoena Angela or that the trial court would have disallowed Robinson to question Angela about the underlying sexual assault at the punishment hearing if Robinson had obtained her presence at the hearing.

      . The dissenting opinion extensively quotes a footnote from the Texarkana Court of Appeals’s Rodriguez v. State opinion because the dissenting opinion says that the Rodriguez opinion addressed the continuance issue “in a manner which ... comports with constitutional mandates.” 903 S.W.2d 405, 412 (Tex. App.-Texarkana 1995, pet. refd) (op. on reh'g); see Dissenting Op. at 584. But after the footnote in Rodriguez that the dissenting opinion has quoted, the Texarkana court actually held that Rodriguez's motion for continuance was nonetheless waived because it was not sworn to. Rodriguez, 903 S.W.2d at 412 ("Until such time as the Court of Criminal Appeals or the Texas Legislature changes the [sworn and in-writing] requirement, this procedure must be met.”).

      . Robinson has not cited any authority holding that he was entitled to rely on Angela’s presence at the punishment hearing — even though she did not receive a subpoena for that hearing — merely because she testified at the adjudication hearing. Also, Robinson’s attempt and failure to serve a timely subpoena shows that he did not believe that Angela would appear at the punishment hearing merely because she had appeared at the adjudication hearing. While the trial court indicated during the adjudication hearing that Robinson could call Angela during the obviously distinct punishment hearing, it did not guarantee her presence at that hearing.

      . Washington v. State, 893 S.W.2d 107, 108-09 (Tex.App.-Dallas 1995, no pet.) (citations omitted).

      . Id.; see also Ricondo v. State, 634 S.W.2d 837, 842 (Tex.Crim.App.1981).

      . Barfield v. State, 63 S.W.3d 446, 449-50 (Tex.Crim.App.2001) (citations and selected quotations omitted).

      . See Washington, 893 S.W.2d at 108-09.

      . Duhart v. State, 668 S.W.2d 384, 387 (Tex.Crim.App.1984) (quotations omitted).

      . II R.R. at 61.

      . McDaniel v. State, 3 S.W.3d 176, 179-80 (Tex.App.-Fort Worth 1999, pet. ref'd) (citations omitted).

      . Long v. State, 742 S.W.2d 302, 320-21 (Tex.Crim.App.1987) (citations omitted), cert. denied, 485 U.S. 993, 108 S.Ct. 1301, 99 L.Ed.2d 511 (1988), overruled on other grounds, Briggs v. State, 789 S.W.2d 918, 924 (Tex.Crim.App.1990).

        .Euler v. State, 218 S.W.3d 88, 91 (Tex.Crim.App.2007) (citations omitted).

        .Ladd v. State, 3 S.W.3d 547, 575 (Tex.Crim.App.1999) (citing Medina v. California, 505 U.S. 437, 445-46, 112 S.Ct. 2572, 2577, 120 L.Ed.2d 353 (1992)), cert. denied, 529 U.S. 1070, 120 S.Ct. 1680, 146 L.Ed.2d 487 (2000); see also Webb v. State, 161 Tex.Crim. 442, 278 S.W.2d 158, 160 (1955) (stating that the term due process "includes and means that an accused shall, in a criminal case, be accorded that fundamental fairness necessary to the due administration of justice”).

      . See Tex.R.App. P. 44.2(a).

      . Tex.Code Crim. Proc. Ann. art. 29.13 (Vernon 2006).

      . 301 S.W.3d 276 (Tex.Crim.App.2009).

      . See majority op. at 578-79.

      . Rodriguez v. State, 903 S.W.2d 405, 412 n. 5 (Tex.App.-Texarkana 1995, pet. ref'd).

      . 775 S.W.2d 718, 721 (Tex.App.-Dallas 1989, no pet.).

      . Id.

      . Villegas v. Carter, 711 S.W.2d 624 (Tex.1986).

      . Id. at 625-26.

      . See id. at 625-27.

      . See id.

      . Cooks v. State, 844 S.W.2d 697, 730 (Tex.Crim.App.1992) (citations omitted), cert. denied, 509 U.S. 927, 113 S.Ct. 3048, 125 L.Ed.2d 732 (1993).

      . Gandy v. Alabama, 569 F.2d 1318, 1322-23 (5th Cir.1978).


source: Caselaw Access Project

author: Opinion by Justice MYERS.

license: Public Domain

text:
    Dell Edward JAMES, Appellant v. COMMISSION FOR LAWYER DISCIPLINE, Appellee.
    No. 05-08-01553-CV.
    Court of Appeals of Texas, Dallas.
    April 5, 2010.

      Monica Lynne Luebker, Glast, Phillips & Murray, PC, Dallas, for appellant.
    Cynthia W. Hamilton, Senior Appellate Counsel, Susan Morgan Farris, Office of the Chief Disciplinary Counsel, for appel-lee.
    Before Justices RICHTER, MURPHY, and MYERS.
   OPINION

Opinion by Justice MYERS.

Dell Edward James appeals the default judgment ordering his disbarment from the practice of law. Appellant argues the trial court erred in rendering the default judgment for disbarment because: (a) the trial court lacked subject-matter jurisdiction over the case; (b) the trial court lacked personal jurisdiction over appellant; (c) the judgment did not conform to the pleadings; and (d) the sanction of disbarment was excessive. Appellant also contends the trial court erred in not granting appellant’s motion for new trial. We affirm the trial court’s judgment.

BACKGROUND

On November 26, 2007, the Commission for Lawyer Discipline filed its original petition seeking the disciplining of appellant for violations of Texas Disciplinary Rules of Professional Conduct in his representation of Thomas Rush. On January 11, 2008, the Commission filed its first amended petition seeking appellant’s disciplining for violating the rules of professional conduct in his representation of Rush and Ruth Grisales. Citation was issued for the original and first amended petitions. The process server made five attempts to serve appellant between January 14 and 31, 2008 by going to appellant’s usual place of business and the Collin County Courthouse when appellant had a hearing scheduled, but he was unable to serve appellant.

On April 15, 2008, the Commission filed its second amended petition alleging violations of the rules of professional conduct in appellant’s representation of Rush and Grisales. When the process server tried unsuccessfully four more times to serve appellant with the second amended petition at his usual place of business, the Commission filed a motion for substituted service. On May 21, 2008, the trial court granted the motion and authorized substituted service on appellant “by leaving a true copy of the citation, with a copy of the Second Amended Disciplinary Petition, with anyone over sixteen years of age at Respondent’s usual place of business, which is 5700 Granite Parkway, Suite 281, Plano Texas 75024.” George Weis filed an affidavit of service stating he served appellant on June 4, 2008, “by delivering to Jenna Pecor, a person sixteen (16) years or older, a true and correct copy of the above mentioned documents at the Defendant’s usual place of business at 5700 Granite Parkway, Suite 281, Plano, TX 75024, per Order Granting Petitioner’s Second Motion for Substitute Service of Process, having first endorsed thereon the date of the delivery.”

On August 5, 2008, appellant had not filed an answer, and the Commission moved for a default judgment, which the trial court granted, finding appellant violated the rules of professional conduct. After a hearing that included testimony from Rush and Grisales and evidence appellant had received a public reprimand in 2005, the trial court rendered judgment that (a) appellant was disbarred and his license to practice law was revoked, (b) permanently enjoined appellant from practicing law, (c) ordered appellant to take particular actions for the protection of his clients and the public, and (d) ordered him to pay restitution to Rush and Grisales and attorney’s fees and costs to the Commission.

On August 7, 2008, appellant filed an answer in the suit, and he filed a motion for new trial on August 12, 2008. No hearing was held on the motion for new trial, which was overruled by operation of law.

SUBJECT MATTER JURISDICTION

Appellant contends the trial court lacked subject-matter jurisdiction over the cause because the Commission did not plead and prove the disciplinary petition was filed within sixty days of appellant’s election to have a trial in district court.

After a complaint filed against an attorney is determined to be supported by just cause, the attorney is given written notice of the allegations and rule violations. See Tex.R. Disciplinary P. 2.12-.14, reprinted in Tex. Gov’t Code Ann., tit. 2, subtit. G app. A-l (Vernon 2005). The attorney then has twenty days to elect in writing to have the complaint heard in a district court or before an evidentiary panel of the District Grievance Committee. Tex.R. Disciplinary P. 2.15. If the attorney timely elects a trial in district court, the Chief Disciplinary Counsel must file the disciplinary petition within sixty days. Tex.R. Disciplinary P. 3.01.

Appellant argues the trial court lacked subject-matter jurisdiction because the Commission did not plead or prove that the disciplinary petition was filed within sixty days of appellant’s election to have the action tried in district court. Not all statutory prerequisites for suit are jurisdictional. See Igal v. Brightstar Info. Tech. Group., Inc., 250 S.W.3d 78, 84 (Tex. 2008). Whether a filing requirement is jurisdictional is a question of statutory interpretation to determine whether the legislature intended the consequences of making the requirement jurisdictional. Id. Rule 3.01 provides,

If the Respondent timely elects to have the Complaint heard by a district court, with or without a jury, in accordance with Rule 2.15, the Chief Disciplinary Counsel shall file not more than sixty days after receipt of Respondent’s election to proceed in district court a Disciplinary Petition in the name of the Commission with the Clerk of the Supreme Court of Texas.

Tex.R. Disciplinary P. 3.01. The rule then describes the matters that must be pleaded in the disciplinary petition. Rule 3.01 does not require the Commission to plead compliance with the sixty-day filing requirement. Nothing in the rule indicates the legislature intended that the sixty-day filing requirement be jurisdictional. Accordingly, the Commission’s failure to plead and.prove that the disciplinary petition was filed within sixty days of appellant’s election did not deprive the trial court of subject-matter jurisdiction over the cause. We overrule appellant’s issue challenging the trial court’s subject-matter jurisdiction.

PERSONAL JURISDICTION

Appellant next contends the trial court erred in entering the default judgment because the court lacked personal jurisdiction. Appellant asserts the trial court erred in authorizing substituted service, the court’s order for substituted service was void, and the citation was void.

Appellant first argues the trial court erred in ordering substituted service. Service of process, including substituted service, is governed by Texas Rule of Civil Procedure 106:

(a) Unless the citation or an order of the court otherwise directs, the citation shall be served by any person authorized by Rule 103 by
(1) delivering to the defendant, in person, a true copy of the citation with the date of delivery endorsed thereon with a copy of the petition attached thereto, or
(2) mailing to the defendant by registered or certified mail, return receipt requested, a true copy of the citation with a copy of the petition attached thereto.
(b) Upon motion supported by affidavit stating the location of the defendant’s usual place of business or usual place of abode or other place where the defendant can probably be found and stating specifically the facts showing that service has been attempted under either (a)(1) or (a)(2) at the location named in such affidavit but has not been successful, the court may authorize service
(1) by leaving a true copy of the citation, with a copy of the petition attached, with anyone over sixteen years of age at the location specified in such affidavit, or
(2) in any other manner that the affidavit or other evidence before the court shows will be reasonably effective to give the defendant notice of the suit.

Tex.R. Civ. P. 106. Appellant first asserts the Commission did not comply with paragraph (b) because the affidavit in support of the Commission’s motion for substituted service did not sufficiently establish appellant’s usual place of business.

In the affidavit, the process server, Weis, testified, “Respondent’s usual place of business is 5700 Granite Parkway, Suite 281, Plano Texas, 75027.” Weis then described his four unsuccessful attempts to serve appellant in April and May 2008. Weis stated that on each occasion, he went to appellant’s usual place of business, and the receptionist told him appellant was not in the office. Weis left his business card with the receptionist and asked her to have appellant call him to arrange delivery of the documents. In his description of the May 2, 2008 attempted service, Weis stated the receptionist told him she had given appellant Weis’s telephone number. Weis stated he had not received any telephone calls or messages from appellant as of May 13, 2008, the date of the affidavit.

Appellant argues the affidavit was insufficient to show the Granite Parkway address was his “usual place of business.” Appellant asserts Weis’s statement that the address was appellant’s usual place of business was conclusory and not supported by probative evidence as required by this Court’s opinion in Garrels v. Wales Transportation, Inc., 706 S.W.2d 757 (Tex.App.Dallas 1986, no writ). We disagree with appellant’s interpretation that Gan-els required additional evidence to support the affiant’s statement of the address of the defendant’s usual place of abode or business. In Garrels, the plaintiffs unsworn motion for substituted service stated a particular address was the defendant’s home address, but the supporting affidavit did not include such a statement. Id. at 758-59; see Tex.R. Civ. P. 106. Concluding the unsworn motion was insufficient, this Court stated that before the trial court may order substituted service under rule 106, “there must be evidence of probative value that the location stated in the affidavit is the defendant’s usual place of business or usual place of abode or other place where the defendant can probably be found.” Id. at 759. Garrets did not require the affidavit to state how the affiant concluded the address was the usual place of business or abode of the defendant; it required the affidavit, as opposed to only an unsworn motion, state the address was the defendant’s usual place of business or abode. See Pao v. Brays Vill. E. Homeowners Ass’n, Inc., 905 S.W.2d 35, 37 (Tex.App.-Houston [1st Dist.] 1995, no writ).

Appellant also argues the facts stated in the affidavit do not establish the address was appellant’s usual place of business because the affidavit showed only that the receptionist said appellant was not there and she did not know when he would return. Citing Coronado v. Norman, 111 S.W.3d 838 (Tex.App.-Eastland 2003, pet. denied), appellant asserts the affidavit had to show the process server asked when he would be in or where he would be located. In Coronado, the affidavit in support of the motion for substituted service stated the process server “made more than 6 visits” to the defendant’s usual place of abode and was told on each occasion that the defendant “resided at such address but that he was not there.” Id. at 840. The court concluded the affidavit was insufficient because it did not contain the specific dates and times that service was attempted. Id. at 842. As the court observed, “Every attempt may have been while appellant was at work. When told that appellant ‘was not there,’ the process server apparently did not try to find out where appellant could be located or when he would return.” Id. The court stated that the process server did not inquire about the defendant’s whereabouts or expected return, but it did not hold that such an inquiry was necessary. See id. In this case, the affidavit stated the specific dates and times Weis tried to serve appellant at the Granite Parkway address. Also, the receptionist’s response that she did not know when appellant would return indicates Weis did inquire when appellant would return. Thus, Coronado is distinguishable.

Appellant also argues the affidavit was insufficient because it did not show Weis tried to serve appellant anywhere other than his usual place of business or attempted to find appellant through any other method. Rule 106 does not require that personal service be attempted at multiple locations before the trial court may authorize substituted service, and appellant cites no authority in support of this argument.

Appellant also argues the order for substituted service was void because it did not specify the manner for the proof of service. Rule of civil procedure 107 governs the return of service, and it states, “Where citation is executed by an alternative method as authorized by Rule 106, proof of service shall be made in the manner ordered by the court.” Tex.R. Civ. P. 107. The trial court’s order for substituted service did not prescribe a manner for the proof of service, and appellant argues that omission rendered the order for substituted service void. We disagree. In Pao, the court faced the same issue and stated, “We hold that, in the absence of a specification in the trial court’s rule 106 order of a different manner of proving service, proof of service in the normal manner authorized by rule 107 is sufficient.” Pao, 905 S.W.2d at 38. Appellant does not complain that the proof of service did not comply with rule 107. We conclude appellant’s argument that the order for substituted service is void for failing to specify the manner of service lacks merit.

Appellant next argues the order for substituted service was void because it did not state the name of the disinterested adult who was to serve process, citing Ex parte Wood, 590 S.W.2d 568 (Tex.Civ.App.-Houston [1st Dist.] 1979, orig. proceeding). In that case, the court held the failure of the order for substituted service to specify the identity of the process server was “fatal to the acquisition of in personam jurisdiction” because rule 106(e) specifically required that “service is to be effected by any disinterested adult named by the court in its order.” Id. at 569. Rule 106 no longer requires the order to state the name of the person authorized to serve process. Thus, Ex parte Wood is not applicable. Appellant’s argument lacks merit.

Appellant next argues the citation was void because it stated, “Said Plaintiffs Petition was filed in said court ... on November 26, 2007, in this case, numbered 4160403307 on the docket of said court.” November 26, 2007 was the date the original petition was filed; the second amended petition, which was the document served with the citation, was filed April 15, 2008. Rule of civil procedure 99(b) governs the form of the citation, and it requires the citation “show date of filing of the petition.” Tex.R. Civ. P. 99(b)(4). Appellant argues the citation failed to meet this requirement because it did not show the filing date for the version of the petition served with the citation, the second amended petition. The Commission argues the citation met the requirement because it showed the date of the filing of the original petition, which it asserts is the relevant date for rule 99(b)(4).

We conclude that the citation was not void for stating the date of the filing of the original petition instead of the amended petition served with the citation. The filing of the original petition marks the trial court’s acquisition of jurisdiction over the suit. See Perry v. Del Rio, 66 S.W.3d 239, 252 (Tex.2001); In re Henry, 274 S.W.3d 185, 191 (Tex.App.-Houston [1st Dist.] 2008, pet. denied). Generally, it is from the filing date of the original petition that the statute of limitations is determined. Tex. Civ. Prac. & Rem.Code Ann. §§ 16.001-.072 (Vernon 2002 & Supp.2009). The filing of the original petition usually marks the beginning of the discovery period. See Tex.R. Civ. P. 190.2(c)(1), 190.3(b)(1). The rules do not require that the citation itself bear the date of any subsequent pleadings served; however, if the defendant required notice of the filing date of the amended petition served with the citation, that date should be stamped on the petition. See Tex.R. Civ. P. 24.

We conclude appellant has not established the trial court lack personal jurisdiction. We overrule appellant’s issues asserting the trial court lacked personal jurisdiction.

JUDGMENT’S CONFORMANCE TO THE PLEADING

Appellant next complains the default judgment is invalid because the default judgment did not conform to the pleadings. A trial court’s judgment must conform to the pleadings filed in the case. Tex.R. Civ. P. 301; Steinberg v. Comm’n for Lawyer Discipline, 180 S.W.3d 352, 358 (Tex.App.-Dallas 2005, no pet.).

The judgment in this case awarded the Commission injunctive relief by ordering that appellant

is permanently enjoined from practicing law in Texas, holding himself out as an attorney, performing any legal services for others, accepting any fee directly or indirectly for legal services, appearing as counsel or in any representative capacity in any Texas court or before any Texas administrative body, or holding himself out to others or using his name in any matter in conjunction with the words “attorney,” “attorney at law,” “counselor at law,” or “lawyer” effective August 5th, 2008.

The second amended petition’s prayer stated, “Petitioner prays for judgment that Respondent be disciplined, as the facts shall warrant; and that Petitioner have such other relief to which entitled, including direct expenses, costs of Court, and reasonable attorneys’ fees and legal assistant fees.” Appellant asserts the petition did not specifically request disbarment or injunctive relief, and that the judgment cannot award injunctive relief unless it was specifically requested. We disagree.

The Commission’s pleading followed the requirement of rule of disciplinary procedure 3.01(F) that the disciplinary petition contain “[a] demand for judgment that the Respondent be disciplined as warranted by the facts and for any other appropriate relief.” Tex.R. Disciplinary P. 8.01(F). The rules do not require the petition to state the level of sanction requested. The rules of disciplinary procedure recognize eight types of “sanctionfs],” including disbarment. See Tex.R. Disciplinary P. 1.06(Y). By praying that appellant be “disciplined, as the facts shall warrant,” the Commission was praying for all appropriate sanctions to be imposed, including disbarment.

When disbarment or suspension is the assessed sanction, rule of disciplinary procedure 3.11 states that the court “shall enjoin the Respondent from practicing law or from holding himself or herself out as an attorney eligible to practice law during the period of disbarment or suspension.” Id. 3.11. A pleading for disbarment “is necessarily to plead for injunctive relief because the very essence of a disbarment is that the person is barred (i.e., enjoined) from practicing law.” Worldpeace v. Comm’n for Lawyer Discipline, 183 S.W.3d 451, 457 (Tex.App.-Houston [14th Dist.] 2005, pet. denied). By pleading that appellant be “disciplined,” the Commission placed appellant on notice that disbarment, with its mandatory injunctions, was amongst the relief sought by the Commission.

Accordingly, we conclude the judgment of disbarment conformed to the pleadings, and we overrule appellant’s issue asserting the judgment does not conform to the pleadings.

MOTION FOR NEW TRIAL

Appellant next contends the trial court erred in failing to grant his motion for new trial. Appellant’s motion for new trial asserts his failure to answer the Commission’s disciplinary petition was due to accident or mistake and not conscious indifference, that he has a meritorious defense to the Commission’s allegations, and that the granting of the motion for new trial will not work an injury to the Commission. See Craddock v. Sunshine Bus Lines, 134 Tex. 388, 393, 133 S.W.2d 124, 126 (Tex.1939); Zaidi v. Comm’n for Lawyer Discipline, 252 S.W.3d 421, 424 (Tex.App.-Houston [1st Dist.] 2002, no pet.).

We review a trial court’s ruling on a motion for new trial for an abuse of discretion. Dolgencorp of Tex., Inc. v. Lerma, 288 S.W.3d 922, 926 (Tex.2009); MobileVision Imaging Servs., L.L.C. v. LifeCare Hosps. of N. Tex., L.P., 260 S.W.3d 561, 564 (Tex.App.-Dallas 2008, no pet.). We may not overrule the trial court’s decision unless the trial court acted unreasonably or in an arbitrary manner, without reference to guiding rules or principles. Landerman v. State Bar of Tex., 247 S.W.3d 426, 433 (Tex.App.-Dallas 2008, pet. denied). "When a movant for new trial from a default judgment makes no effort to have the motion set for a hearing or otherwise to draw the trial court’s attention to the motion, and the movant allows the motion to be overruled by operation of law, the trial court does not abuse its discretion in permitting the motion to be overruled by operation of law. Fluty v. Simmons Co., 835 S.W.2d 664, 666-68 (Tex.App.-Dallas 1992, no writ); Shamrock Roofing Supply, Inc. v. Mercantile Nat’l Bank, 703 S.W.2d 356, 357-58 (Tex.App.-Dallas 1985, no writ); see also Weiss v. JPMorgan Chase Bank, N.A., 05-06-00940-CV, 2007 WL 2069627, at 3 (Tex.App.-Dallas July 20, 2007, pet. denied) (mem. op.).

In this case, there was no hearing on the motion for new trial. The motion itself did not request a hearing, and the record does not show appellant attempted to have the motion set for a hearing. We conclude appellant has not shown the trial court abused its discretion in failing to grant his motion for new trial.

We overrule appellant’s issue asserting the trial court erred in failing to grant his motion for new trial.

SANCTION OF DISBARMENT

In his final issue, appellant asserts the trial court abused its discretion in rendering the sanction of disbarment. Appellant asserts disbarment was an excessive sanction under the evidence before the court of his misconduct.

The trial court has broad discretion to determine the appropriate sanction in an attorney disciplinary action. State Bar of Tex. v. Kilpatrick, 874 S.W.2d 656, 659 (Tex.1994). In determining the appropriate sanction, the trial court considers the factors listed in rule of disciplinary procedure 3.10:

In determining the appropriate Sanctions, the court shall consider:
A. The nature and degree of the Professional Misconduct for which the Respondent is being sanctioned;
B. The seriousness of and circumstances surrounding the Professional Misconduct;
C. The loss or damage to clients;
D. The damage to the profession;
E. The assurance that those who seek legal services in the future will be insulated from the type of Professional Misconduct found;
F. The profit to the attorney;
G. The avoidance of repetition;
H. The deterrent effect on others;
I. The maintenance of respect for the legal profession;
J. The conduct of the Respondent during the course of the Committee action;
K The trial of the case; and
L. Other relevant evidence concerning the Respondent’s personal and professional background.
In addition, the Respondent’s disciplinary record, including any private reprimands, is admissible on the appropriate Sanction to be imposed.

Tex.R. Disciplinary P. 3.10.

After finding appellant was in default and he had committed misconduct, the court held an evidentiary hearing to determine the appropriate sanction. The Commission introduced evidence that appellant received a public reprimand in 2005 for violating rules of professional conduct 1.03(a) and (b). Appellant was also ordered to pay restitution to the injured client of $14,483.24.

Ruth Grisales testified she hired appellant’s law firm in May 2005 to pursue her claim for damages against her employer after she was injured at work. The contract provided that another attorney in the firm would represent Grisales. The case settled for $28,000 in November 2006, but Grisales was not notified. When Grisales had not heard anything from the firm by spring of 2007, she called the firm. The legal assistant told Grisales her case had been settled and that Grisales needed to talk to appellant. After Grisales made “many, many calls” to appellant without him responding, he finally answered her call and told her the case had settled. Grisales asked why she had not been informed or allowed to decide on the settlement, but appellant evaded her question. Appellant agreed to meet with Grisales. At their meeting, appellant agreed to meet with her again and bring her check. When appellant did not contact her about the meeting time, Grisales sent him a letter on June 26, 2007 stating appellant had seven days to contact her or she would file a complaint with the State Bar of Texas. Appellant then contacted Grisales and agreed to bring her check to her workplace in early July. Appellant brought a handwritten check for Grisales. Grisales told appellant the check was for the wrong amount, and appellant explained the shortfall was to cover $4000 of Grisales’s outstanding medical bills. Grisales said she did not have any outstanding medical bills. Grisales asked to see the settlement agreement and the disbursement statement, but appellant did not have them with him. Grisales refused to accept the check. They met again on July 22, 2007, and Grisales told appellant the check he brought was still too small for the amount she was due. Again, appellant did not bring the settlement agreement or disbursement statement, and Grisales told appellant she would not accept a check until she saw them. Appellant apologized and promised to send the documents to her immediately; however, Grisales testified she never received either the documents or the check. She testified she was owed $18,200 after deduction of the firm’s thirty-five percent contingency fee. Counsel for the Commission asked Grisales if appellant’s handling of her case affected her view of attorneys and the legal system, and she answered, “Very much so. I feel violated. He violated my trust. I hired him to protect my rights and to represent me and he — I feel violated.” When asked what she thought should happen to appellant, she stated, “He shouldn’t be practicing. He’ll be doing this to a lot of people.”

Thomas Rush testified he hired appellant’s firm in February 2005 to represent him after he was injured in an automobile accident. Rush met with another attorney at appellant’s firm who told him appellant would handle the trial and settlement. At that initial meeting, Rush told the attorney what he considered an appropriate settlement amount. In August 2005, the attorney called Rush and asked if he would settle for $6000; Rush refused, stating the amount was below the settlement amount they discussed. The attorney agreed to go back to appellant and see if they could get Rush a better settlement. Rush did not hear anything more for about a year. When the statute of limitations was about to run on his claim, he began calling the firm. Rush left several messages for appellant. The law firm’s staff told Rush that appellant was personally handling the case, appellant had Rush’s file, that no one else in the firm could help Rush, and that appellant would call him. Appellant did not call. In February 2007, about a week before the statute of limitations expired, Rush began calling several times a day until the receptionist gave Rush appellant’s cell phone number. When Rush called appellant’s cell phone, appellant answered and apologized for not returning his phone calls and said he had been sick; appellant promised to call Rush that afternoon. When appellant called Rush, he said he had just gotten off the phone with the insurance company, and that the most the case could be settled for was $8000. Rush testified that he agreed to accept that amount “out of desperation.” Appellant promised to get a check for the settlement to Rush within thirty days. Forty days later, when Rush had not heard from appellant or received a check, he called appellant, who said he had a check for him. They agreed to meet the following Monday at noon. Shortly before the meeting, another lawyer from the firm called Rush and told him appellant was tied up in court and would not be able to meet with him. The attorney said appellant had Rush’s check in his briefcase and the check would be brought to Rush the following Monday. When the check was not delivered the next Monday or the next week, Rush called the insurance company with whom appellant said he had settled the case in February 2007 for $8000 and learned the case had been settled in August 2005 for $11,000 and that the file was closed. Rush asked the insurance company to send him a copy of the check. Rush testified the check had been made out to him and appellant’s firm and that his endorsement had been forged on the check. Rush then filed a complaint with the State Bar of Texas. Rush sent a certified letter to appellant demanding payment, and Rush personally delivered a copy of the letter to appellant’s secretary. Appellant never responded. Rush testified he was owed $7337 after deduction of the firm’s contingency fee. At the conclusion of his testimony, counsel for the Commission asked Rush if the way appellant handled his case affected his view of attorneys and the legal system, and Rush answered, “Well, I lost a lot of faith and confidence in the legal system. I don’t think I’ll ever again fully trust an attorney.”

After the Commission rested, counsel for the Commission argued the factors under section 3.10 of the rules of disciplinary procedure showing how each applied to appellant’s conduct. The trial court stated that each of the twelve factors “has come into play in [appellant’s] conduct....” The court stated that after taking into consideration all matters, including appellant’s disciplinary record, “the Court has no qualms and has no problem in ordering [appellant’s] disbarment.”

Appellant argues that disbarment under these facts is an excessive sanction. He asserts it was the fault of other attorneys in the firm who failed to contact Grisales after her case settled and that he did contact her after receiving her letter. Appellant states their subsequent disagreement over the amount of the check was a disagreement over the amount of the firm’s fee, which appellant asserts does not warrant disbarment. Concerning Rush, appellant asserts Rush’s testimony showed it was other attorneys who met with him and told him appellant would be handling his case and that Rush never spoke to appellant to confirm that appellant would be representing him. Appellant also asserts the evidence showed Rush received an adequate settlement because he agreed to accept a settlement of $8000 and the firm had settled the case for $11,000. Appellant argues the evidence showed he was not the attorney who Grisales and Rush hired or that he had agreed to represent them. He asserts the evidence showed he made attempts to pay them. He argues that if he was guilty of any rule violation, it was for failing to supervise the other attorneys, which was not alleged in the disciplinary petition. Appellant asserts that “[m]any more egregious actions by attorneys have not resulted in such harsh action, but rather with fines or suspensions”; however, he cites no supporting authority for this assertion.

Rush’s testimony showed appellant said he would be representing Rush in settlement negotiations with the insurance company. Grisales’s and Rush’s testimony showed that even if appellant did not represent them, he was the custodian of then-settlement funds. As such, he had a duty to communicate timely with them about the settlements and to give them then-funds, which he failed to do. See Tex. Disciplinary R. Profl Conduct 1.14(b), 1.15(d). He had to provide them an accounting for their funds, which he failed to do. See id. 1.04(d), 1.14(b). The trial court could conclude from Rush’s testimony that appellant accepted a settlement of his case without consulting him. See id. 1.02(a)(2). Grisales’s and Rush’s testimony showed appellant ignored their attempts to communicate with him and then-reasonable requests for information. See id. 1.03(a). Grisales’s and Rush’s testimony showed appellant lied to them and cheated them. See id. 8.03(a)(3) (“A lawyer shall not ... engage in conduct involving dishonesty, fraud, deceit or misrepresentation .... ”). His actions, as testified to by Grisales and Rush, constituted repeated, egregious breaches of his fiduciary duties to multiple clients. Applying the twelve considerations listed under rule of disciplinary procedure 3.10, we cannot conclude the trial court abused its discretion in determining disbarment was an appropriate sanction.

Appellant argues disbarment is inappropriate in a default setting because he “was never allowed to produce evidence to rebut the allegations made by the [Commission], nor was he given a chance to explain his professional background as a mitigating circumstances.” Appellant cites no authority in support of this argument. Furthermore, appellant was not deprived of any rights. He was served with the suit by substituted service. To preserve his right to produce evidence and explain his professional background, all he had to do was to file an answer before the default judgment was entered. He failed to do so.

We conclude the trial court did not abuse its discretion in ordering appellant disbarred, and we overrule appellant’s issue asserting the sanction of disbarment was excessive.

We affirm the trial court’s judgment.

      . In his appellant's brief and reply brief, appellant purports to quote the citation as stating, "Plaintiff's Second Amended Petition was filed on the docket of said Court on November 26, 2007." Appellant’s quotation is not accurate.

      . Appellant asserts an email in the clerk's record showed he requested a hearing. The email is from someone named "Diane Powell,” and the signature line, "Diane/416th District Court,” indicates she is part of the staff of the trial court. The email is addressed to "Sylvia Powell,” and nothing indicates her position or affiliation with the case. The email reads,
      Sylvia,
      The above referenced case keeps coming back to me for me to set a hearing on the Motion for New [T]rial. It is my understanding they are appealing the case. Would you please ask Judge Medina [the appointed judge, see Tex.R. Disciplinary P. 3.02] if there is anything I need to do. Do I just send it back to the clerk’s office or does he want me to scan the order denying the new trial to him to sign. Thanks for your help.
      Diane/416th District Court
      The email does not show appellant requested a hearing. The email was dated November 24, 2008, which was 111 days after the final judgment, 36 days after the motion for new trial had been overruled by operation of law, and 6 days after the trial court’s plenary power had expired. Even if the email indicated appellant had requested a hearing on the motion for new trial, it did not show he did so before the motion was overruled by operation of law.

      . See Tex. Disciplinary R. Prof'l Conduct 1.03, reprinted in Tf.x. Gov't Code Ann., tit. 2, subtit. G app. A (Vernon 2005) (Tex. State Bar R. art. X, § 9):
      (a) A lawyer shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information.
      (b) A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.