Court of Appeals of Texas, Fourth District, San Antonio
the 37th Judicial District Court, Bexar County, Texas Trial
Court No. 2012-CI-20086 Honorable Tonya Parker, Judge
Sitting: Sandee Bryan Marion, Chief Justice Karen Angelini,
Justice Irene Rios, Justice
appeal arises from an attorney disciplinary proceeding in
which a jury found Hugo Xavier de los Santos failed to hold
funds belonging to a client separate from his own funds, a
violation of Texas Disciplinary Rule of Professional Conduct
1.14(a). We affirm the trial court's judgment entered on
the jury verdict.
January 2001, Kelle Martinez hired Mr. de los Santos to
represent her and her daughter Tara in a personal injury
lawsuit resulting from a motor vehicle accident. During this
representation, Mr. de los Santos received monies for Kelle
Martinez from insurance claims for personal injury
protection, which he placed in a client escrow account
("the escrow account"). Mr. de los Santos paid the
Martinezes' medical expenses from the escrow account. The
personal injury lawsuit eventually settled, resulting in a
payment of $85, 000 to Kelle and $6, 000 to Tara, all of
which was placed in the escrow account on October 27, 2004.
2001 and 2011, Mr. de los Santos represented Ms. Martinez in
other cases related to injuries sustained in the motor
vehicle accident, as well as unrelated cases filed by Ms.
Martinez and/or her husband, Pete Martinez. The same escrow
account was used in all of the cases in which Mr. de los
Santos represented any of the Martinezes.
letter dated February 25, 2011, Ms. Martinez advised Mr. de
los Santos she was dissatisfied with the time taken to
resolve the outstanding medical bills and "with the time
taken to settle [her] motor vehicle accident case." Ms.
Martinez stated she intended to file a grievance with the
State Bar of Texas. In response, Mr. de los Santos met with
Kelle and Pete Martinez on March 18, 2011, and provided them
a report which detailed the funds received and the expenses
and attorney fees paid with regard to all of the cases in
which he represented them. According to this report, Ms.
Martinez was due $10, 298.92 for the personal injury lawsuit.
Mr. de los Santos gave Ms. Martinez and Pete a check in this
amount during the meeting.
time later, Ms. Martinez filed a complaint with the
Commission for Lawyer Discipline ("the
Commission"). Following an investigation, the Commission
filed suit against Mr. de los Santos alleging he violated
Texas Disciplinary Rules of Professional Conduct 1.14(a),
1.14(b), and 8.04(a)(3).
case proceeded to trial before a jury, which found in favor
of Mr. de los Santos on all questions in the jury charge but
one. Question Two of the charge asked the jury: "Did
Hugo De Los Santos fail to hold funds belonging in whole or
in part to clients or third persons, that were in his
possession in connection with a representation, separate from
his own funds?" The jury responded, "Yes". The
trial court determined the jury's affirmative finding to
Question Two constituted a violation of Texas Disciplinary
Rule of Professional Conduct 1.14(a) (Rule
1.14(a)).The trial court assessed
punishment of suspension from the practice of law in the
State of Texas for 18 months, with 12 months of the
suspension probated. Mr. de los Santos perfected this appeal.
One and Two: Legal and Factual Sufficiency of the Evidence to
Support the Jury Finding on Question Two
first and second appellate issues, Mr. de los Santos argues
the jury's answer to Question Two should be set aside
because the evidence is legally and factually insufficient to
support it. With regard to his legal sufficiency challenge,
Mr. de los Santos contends the evidence conclusively proves
he held funds belonging to Ms. Martinez or third persons
separate from his own funds. In addition, Mr. de los Santos
asserts the Commission presented no evidence that he ever
failed to deposit any funds belonging to the Martinezes into
the escrow account, that he paid any of his firm's bills
or expenses from Ms. Martinez's escrow account, or that
he failed to hold funds belonging to the Martinezes separate
from his own funds.
successfully challenge the legal sufficiency of evidence to
support an adverse finding on an issue on which it did not
have the burden of proof, the appellant must demonstrate the
record contains no evidence to support the adverse finding.
Bennett v. Comm'n for Lawyer Discipline, 489
S.W.3d 58, 65-66 (Tex. App.-Houston [14th Dist.] 2016, no
pet.). An appellate court may sustain such a
legal-sufficiency (or no evidence) challenge only if the
record reveals one of the following: (1) the complete absence
of evidence of a vital fact; (2) the court is barred by rules
of law or evidence from giving weight to the only evidence
offered to prove a vital fact; (3) the evidence offered to
prove a vital fact is no more than a scintilla; or (4) the
evidence established conclusively the opposite of the vital
fact. City of Keller v. Wilson, 168 S.W.3d 802, 811
(Tex. 2005); Univ. Gen. Hosp., LP v. Prexus Health
Consultants, LLC, 403 S.W.3d 547, 551 (Tex. App.-Houston
[14th Dist.] 2013, no pet.). More than a scintilla of
evidence exists when the evidence supporting the finding, as
a whole, "rises to a level that would enable reasonable
and fair-minded people to differ in their conclusions."
Merrell Dow Pharm., Inc. v. Havner, 953 S.W.2d 706,
711 (Tex. 1997). If the evidence is so weak as to do no more
than create a mere surmise or suspicion of its existence, its
legal effect is that it is no evidence. Kroger Tex., Ltd.
P'ship v. Suberu, 216 S.W.3d 788, 793 (Tex. 2006);
Kellmann v. Workstation Integrations, Inc., 332
S.W.3d 679, 684 (Tex. App.-Houston [14th Dist.] 2010, no
conducting a legal sufficiency review, we must consider the
evidence in the light most favorable to the appealed finding
and indulge every reasonable inference that supports it.
City of Keller, 168 S.W.3d at 819-22; Leas v.
Comm'n for Lawyer Discipline, 13-10-00441-CV, 2012
WL 3223688, at *4 (Tex. App.-Corpus Christi Aug. 9, 2012,
pet. dism'd w.o.j.) (mem. op.). This court must credit
favorable evidence and disregard contrary evidence if a
reasonable trier of fact would do so. City of
Keller, 168 S.W.3d at 821-22; Leas, 2012 WL
3223688, at *4.
successfully challenge the factual sufficiency of evidence to
support an adverse finding on an issue on which it did not
have the burden of proof, the appellant must demonstrate
there is insufficient evidence to support the adverse
finding. McMillin v. State Farm Lloyds, 180 S.W.3d
183, 201 (Tex. App.-Austin 2005, pet. denied). When reviewing
a challenge to the factual sufficiency of the evidence, an
appellate court must examine and weigh all of the evidence in
the record, including any evidence contrary to the verdict.
Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex.
1986); Leas, 2012 WL 3223688, at *4. The appellate
court may set aside the verdict only if the evidence that
supports the jury finding is so weak as to be clearly wrong
and manifestly unjust. Pool, 715 S.W.2d at 635;
Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986);
Leas, 2012 WL 3223688, at *4.