Donald L. Busby v. State

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-97-00757-CR

NO. 03-97-00758-CR

Donald L. Busby, Appellant

The State of Texas, Appellee

FROM THE DISTRICT COURT OF BELL COUNTY, 264TH JUDICIAL DISTRICT

NOS. 44,936 & 44,937, HONORABLE OLIVER KELLEY, JUDGE PRESIDING

Appellant Donald L. Busby was convicted of the offense of misapplication of fiduciary property and granted community supervision. See Tex. Penal Code Ann. § 32.45 (West 1994 & Supp. 1999). Appellant is now appealing from orders revoking community supervision in two cases. He asserts that a special prosecutor had no authority to file and present the motions to revoke, that the trial court abused its discretion in revoking community supervision, and that the trial court erred in admitting inadmissible evidence during the revocation hearing. We will overrule appellant's points of error and affirm the trial court's order revoking community supervision.

The first issue presented by appellant is that: "The 'Special Prosecutor' had no authority to file and present the motion to revoke appellant's community supervision." Appellant summarizes his argument as follows:

1. There is a distinction between a "special prosecutor" and a "prosecutor pro-tem." Ms. Ludwick was the "district attorney pro-tem" and as such needed to have filed an oath with the clerk of the trial court.

2. Ms. Ludwick was appointed as district attorney pro-tem "in the matter of certain investigation currently pending before the July Term 1994 of the Bell County Grand Jury." (Cl. R. I 4) Her actions in filing the motion to revoke Appellant's community supervision exceeded the scope of her appointment.

3. The attempt by the court upon the hearing of the motion to revoke to appoint Ms. Ludwick nunc pro tunc was without authority because there was no evidence that the elected district attorney had disqualified himself as to the revocation.

On July 5, 1994, prior to the indictment of appellant, the following order was filed:

IN THE MATTER OF AN INVESTIGATION * IN THE 264TH DISTRICT COURT

PENDING BEFORE THE JURY TERM, * OF

1994, OF THE BELL COUNTY GRAND JURY * BELL COUNTY, TEXAS

ORDER APPOINTING SPECIAL PROSECUTOR

CAME ON THIS THE 5TH DAY OF JULY, 1994, THE MOTION OF THE DISTRICT ATTORNEY, ARTHUR C. EADS, 264TH JUDICIAL DISTRICT, FOR THE APPOINTMENT OF A SPECIAL PROSECUTOR PURSUANT TO ARTICLE 2.07, TEXAS CODE OF CRIMINAL PROCEDURE, IN THE MATTER OF A CERTAIN INVESTIGATION CURRENTLY PENDING BEFORE THE JULY TERM, A.D. 1994, OF THE BELL COUNTY GRAND JURY,

AND THE COURT, HAVING CONSIDERED THE SAME, AND CONCLUDING THAT SAID MOTION IS PROPER,

IT IS THEREFORE ORDERED IN ACCORDANCE WITH ARTICLE 2.07, TEXAS CODE OF CRIMINAL PROCEDURE THAT MARY LUDWICK AND MILLARD O. ANDERSON, JR., MEMBERS OF THE BAR, DALLAS COUNTY, TEXAS BE APPOINTED SPECIAL PROSECUTORS FOR THE PURPOSE OF CARRYING OUT SAID INVESTIGATION AND EACH SHALL HAVE ALL THE RIGHTS, DUTIES AND OBLIGATIONS OF THE OFFICE OF THE PROSECUTOR TO CONCLUDE THE SAME. IT IS SO ORDERED.

SIGNED AND ENTERED THIS 5TH DAY OF JULY, 1994.

/s/ Jack W. Prescott

JUDGE PRESIDING

264TH JUDICIAL DISTRICT

BELL COUNTY, TEXAS

There is statutory recognition that a special prosecutor may prosecute a criminal case. "It shall be the primary duty of all prosecuting attorneys, including special prosecutors, not to convict, but to see that justice is done." Tex. Code Crim. Proc. Ann. art. 2.01 (West Supp. 1999). See Lopez v. State, 628 S.W.2d 77, 80 (Tex. Crim. App. 1982). A special prosecutor need not take an oath of office. See id.; Ex parte Powers, 487 S.W.2d 101, 104 (Tex. Crim. App. 1972); Lopez v. State, 437 S.W.2d 268, 269 (Tex. Crim. App. 1968); see also Powers v. Hauck, 399 F.2d 322, 323-26 (5th Cir. 1968). The requirement of filing an oath of office by a non-elected prosecutor applies only when the elected district attorney is absent or disqualified. See Ballard v. State, 519 S.W.2d 426, 428 (Tex. Crim. App. 1975); Davis v. State, 840 S.W.2d 480, 487 (Tex. App.--Tyler 1992, pet. ref'd).

Statutory authority provides for the appointment of an attorney pro tem:

Art. 2.07. Attorney pro tem

(a) Whenever an attorney for the state is disqualified to act in any case or proceeding, is absent from the county or district, or is otherwise unable to perform the duties of his office, or in any instance where there is no attorney for the state, the judge of the court in which he represents the state may appoint any competent attorney to perform the duties of the office during the absence or disqualification of the attorney for the state.

(b) Except as otherwise provided by this subsection, if the appointed attorney is also an attorney for the state, the duties of the appointed office are additional duties of his present office, and he is not entitled to additional compensation. Nothing herein shall prevent a commissioners court of a county from contracting with another commissioners court to pay expenses and reimburse compensation paid by a county to an attorney for the state who is appointed to perform additional duties.

(b-1) An attorney for the state who is not disqualified to act may request the court to permit him to recuse himself in a case for good cause and upon approval by the court is disqualified.

(c) If the appointed attorney is not an attorney for the state, he is qualified to perform the duties of the office for the period of absence or disqualification of the attorney for the state on filing an oath with the clerk of the court. He shall receive compensation in the same amount and manner as an attorney appointed to represent an indigent person.

(d) In this article, "attorney for the state" means a county attorney, a district attorney, or a criminal district attorney.

Tex. Code Crim. Proc. Ann. art. 2.07 (West 1977 & Supp. 1999).

As appellant points out, there is a distinction between a "special prosecutor" and a "prosecutor pro tem." See State v. Rosenbaum, 852 S.W.2d 525, 528-30 (Tex. Crim. App. 1993) (Clinton, J., concurring); Stephens v. State, 978 S.W.2d 728, 731 (Tex. App.--Austin 1998, pet. ref'd); Rogers v. State, 956 S.W.2d 624, 625 n.1 (Tex. App.--Texarkana 1997, pet. ref'd). The trial court's order refers to Ms. Ludwick as a "special prosecutor" and also refers to Article 2.07 of the Code of Criminal Procedure relating to the appointment of an attorney pro tem. The court's order is ambiguous.⁽¹⁾ In construing an ambiguous order, the complete record must be considered. See Lone Star Cement Corp. v. Fair, 467 S.W.2d 402, 405 (Tex. 1971). If a court's order is issued pursuant to a motion, that motion may aid greatly in construing the court's order. In this instance although the court's order refers to "the motion of the District Attorney" for the appointment of a "special prosecutor," we cannot find such a motion in the record. There is no finding in the court's order, and the record does not show that the Bell County District Attorney was disqualified in this case, was absent from his district, or was otherwise unable to perform the duties of his office. Furthermore, there is no finding in the court's order and the record does not show that the Bell County District Attorney, although not disqualified to act, for good cause shown was permitted by the court to recuse himself from the prosecution of this case. None of the requirements for the appointment of an attorney pro tem, as required by Article 2.07, are found in the court's order or in the record.

On the other hand, the record shows that Ms. Ludwick was without exception referred to and acted as a special prosecutor in the prosecution of this case. Counsel other than a district attorney, a county attorney, or one of their full-time assistants may appear and prosecute a cause on behalf of the State. See Bingham v. State, 290 S.W.2d 915, 919 (Tex. Crim. App. 1956); Phillips v. State, 263 S.W.2d 159, 160 (Tex. Crim. App. 1953). That Ms. Ludwick did not take an oath as attorney pro tem is evidence that she was not acting in that capacity. The record shows that the district attorney asked the district court to appoint a special prosecutor and that the district attorney agreed to and acquiesced in Ms. Ludwick acting as a special prosecutor in the prosecution of this case. It does not appear that the district attorney gave up his right to control the prosecution of this case. Ms. Ludwick, although appointed to prosecute only this case, had the same authority and no more than an assistant district attorney employed on a full time basis.

Appellant did not claim that Ms. Ludwick was an attorney pro tem and had failed to take and file an oath of office until the motion to revoke community supervision was filed. Generally, "all but the most fundamental evidentiary and procedural rules (or 'rights') are forfeited if not asserted at or before trial." Wilson v. State, 977 S.W.2d 379, 380 (Tex. Crim. App. 1998). Based on the record, we hold that Ms. Ludwick was not an attorney pro tem required to file an oath of office, but was a special prosecutor and did not need to file an oath of office.⁽²⁾ Ms. Ludwick, acting in the capacity of a special prosecutor, did not exceed the scope of her authority in filing the motion to revoke community supervision. As pointed out by appellant, there was not a proper predicate for the trial court to appoint Ms. Ludwick nunc pro tunc, but this makes no difference because Ms. Ludwick, as a special prosecutor, had authority to proceed with the revocation proceeding. Appellant's first point of error is overruled.

In his second point of error, appellant urges that the trial court abused its discretion in revoking his community supervision because the State failed to prove that he had violated the conditions of his community supervision. When appellant was granted community supervision, he agreed to the first condition that provided he would not commit any offense against the laws of this state. The State, in moving for revocation, alleged among other grounds that appellant violated the conditions of his community supervision by committing the criminal offense of falsely holding himself out as a lawyer. The Texas Penal Code provides that:

§ 38.122. Falsely Holding Oneself Out as a Lawyer

(a) A person commits an offense if, with intent to obtain an economic benefit for himself or herself, the person holds himself or herself out as a lawyer, unless he or she is currently licensed to practice law in this state, another state, or a foreign country and is in good standing with the State Bar of Texas and the state bar or licensing authority of any and all other states and foreign countries where licensed.

(b) An offense under Subsection (a) of this section is a felony of the third degree.

Tex. Penal Code Ann. § 38.122 (West 1994).

The State's motion to revoke included the following allegations:

A. The Defendant, Donald L. Busby, has violated condition #1 of said supervision in that on or about the 12th day of March, 1997, in Tarrant County, Texas, he did then and there intentionally and knowingly to obtain an economic benefit for himself, hold himself out as a lawyer to Evelyn R. Leopold for the benefit of Ellyn Leopold while he was not then currently licensed to practice law in Texas, another state, or any foreign country in violation of Section 38.122 of the Texas Penal Code by giving the said Evelyn R. Leopold legal advice in writing for the benefit of Ellyn Leopold with respect to a lawsuit pending in the 18th Judicial District Court of Johnson County, Texas as Cause No. 203-93 styled Debbye Carlson et al v. Natural Y Surgical Specialties, Inc., et al and a claim currently pending in the United States Bankruptcy Court in the Eastern District of Michigan - Northern Division as Cause No. 95-20512-11-AJS and styled In re: Dow Corning Corporation.

C. The Defendant, Donald L. Busby, has violated condition #1 of said supervision in that on or about the 11th day of February, 1997, in Grayson County, Texas, he did then and there intentionally and knowingly to obtain an economic benefit for himself, hold himself out as a lawyer to Dorothy Hunt while he was not then currently licensed to practice law in Texas, another state, or any foreign country in violation of Section 38.122 of the Texas Penal Code by giving the said Dorothy Hunt legal advice by phone with respect to a lawsuit originally filed in the 18th Judicial District Court of Johnson County, Texas as Cause No. 203-90 styled Debbye Carlson et al v. Natural Y Surgical Specialities, Inc. et al now in the form of a claim currently pending in the United States Bankruptcy Court in the Eastern District of Michigan - Northern Division as Cause No. 95-20512-11-AJS and styled In re: Dow Corning Corporation.

Appellate review of an order revoking community supervision is limited to determining whether a trial court abused its discretion. See Cardona v. State, 665 S.W.2d 492, 493 (Tex. Crim. App. 1984); Campbell v. State, 427 S.W.2d 621, 622 (Tex. Crim. App. 1968); Lee v. State, 952 S.W.2d 894, 897 (Tex. App.--Dallas 1997, no pet.). An abuse of discretion occurs "only when the trial judge's decision was so clearly wrong as to lie outside the zone within which reasonable persons might disagree." Cantu v. State, 842 S.W.2d 667, 682 (Tex. Crim. App. 1992). The State's burden of proof in a revocation proceeding is by a preponderance of the evidence. See Cobb v. State, 851 S.W.2d 871, 873 (Tex. Crim. App. 1993); Scamardo v. State, 517 S.W.2d 293, 298 (Tex. Crim. App. 1975). An appellate court views the evidence presented in a revocation proceeding in the light most favorable to the trial court's ruling. See Garrett v. State, 619 S.W.2d 172, 174 (Tex. Crim. App. 1981); Lee, 952 S.W.2d at 897. Regardless of the reasons given by the trial court for revoking community supervision, if evidence supports the court's decision it will not be disturbed on appeal. Jackson v. State, 508 S.W.2d 89, 90 (Tex. Crim. App. 1974). Evidence sufficient to prove one ground for revocation of community supervision will support a trial court's order of revocation and an appellate court need not address contentions relating to other grounds. See O'Neal v. State, 623 S.W.2d 660, 661 (Tex. Crim. App. 1981); Moore v. State, 605 S.W.2d 924, 926 (Tex. Crim. App. 1980); Jones v. State, 571 S.W.2d 191, 193-94 (Tex. Crim. App. 1978); Ross v. State, 523 S.W.2d 402, 404 (Tex. Crim. App. 1975); Roberson v. State, 485 S.W.2d 795, 796 (Tex. Crim. App. 1972); Smith v. State, 932 S.W.2d 279, 283 (Tex. App.--Texarkana 1996, no pet.); Hendley v. State, 783 S.W.2d 750, 752 (Tex. App.--Houston [1st Dist.] 1990, no pet.).

On May 26, 1994, appellant, an attorney licensed to practice law in Texas, signed a contingent fee contract agreeing to represent Ellyn Leopold in a personal injury case relating to her claim for damages resulting from breast implantations.

On April 17, 1996, an agreement between the Commission for Lawyer Discipline and appellant was filed in a Bell County district court. Appellant agreed to relinquish his license to practice law and to cease his practice of law either directly or indirectly after June 30, 1996. Appellant agreed that he would not accept any new clients or any new matters from existing clients after the filing of the agreement. Appellant agreed that, no later than May 31, 1996, he would "notify in writing all persons currently represented by him that he had consented to resign as a licensee of the Supreme Court of Texas and as a member of the State Bar of Texas and to cease the practice of law on June 30, 1996. . . . Copies of each such notification shall be provided to . . . the Commission for Lawyer Discipline on or before June 5, 1996." On April 22, 1996, the agreement was amended to provide that appellant could receive referral fees paid after his resignation to practice law that were based on a referral fee agreement consummated prior to entry by the Supreme Court of its order accepting appellant's resignation in lieu of discipline. On June 27, 1996, the Supreme Court of Texas entered an order accepting appellant's resignation in lieu of discipline that provided:

STATE'S EXHIBIT 8-C

IN THE SUPREME COURT OF TEXAS

IN THE MATTER OF) MISC. DOCKET NO.

) 96-9158

DONALD L. BUSBY)

ORDER ACCEPTING RESIGNATION IN LIEU OF DISCIPLINE

On this day, the Court considered the Motion To Resign In Lieu of Discipline of Donald L. Busby together with the Response of the Chief Disciplinary Counsel of the Commission for Lawyer Discipline. The Court finds that the Motion and Response each meet the applicable requirements of the Texas Rules of Disciplinary Procedure. The Court, based upon the record in this proceeding, hereby concludes that the following order is appropriate.

IT IS ORDERED that the resignation of Donald L. Busby of Temple, Texas, a licensee of this Court, as a member of the State Bar of Texas, and as Attorney and Counselor of Law be, and the same is hereby, accepted. Accordingly, it is ordered that the law license of Donald L. Busby and the State Bar membership card of Donald L. Busby be, and the same are hereby, canceled and the name of Donald L. Busby shall be deleted from the list of persons licensed to practice law within the State of Texas. The Court acknowledges receipt of the law license issued by this Court to Donald L. Busby and the receipt of the State Bar membership card issued to him.

IT IS FURTHER ORDERED that Donald L. Busby be, and he is hereby permanently enjoined and prohibited from practicing law in the State of Texas, holding himself out as an attorney at law, performing any legal services for others, giving legal advice to others, accepting any fee directly or indirectly for legal services, appearing as counsel or in any representative capacity in any proceeding in any Texas court or before any Texas administrative body (whether state, county, municipal, or other), or holding himself out to others or using his name in any manner in conjunction with the words "Attorney at Law," or "Counselor at Law," or "Lawyer."

IT IS FURTHER ORDERED that Donald L. Busby shall, within thirty (30) days after the date of this Order, notify in writing each and every justice of the peace, judge, magistrate, and chief justice of each and every Texas court in which he is an attorney of record in a pending matter, advising each such court of his resignation and of the style and cause number of any matter pending in such court together with the name, address, and telephone number of his client(s) in each such matter. Donald L. Busby is further ORDERED to send a copy of each such notification letter to the Office of the Chief Disciplinary Counsel, Commission for Lawyer Discipline, P. O. Box 12487, Capitol Station, Austin, Texas 78711-2487, Attn: William E. Minkley, Chief Trial Counsel.

By the Court, en banc, in chambers, on this the 27th day of June, 1996.

Misc. Docket No. 96-9158

On December 13, 1996, appellant was convicted of the offense of misapplication of fiduciary property and granted community supervision.

Attorney James Thompson testified that sometime in January 1997 appellant assigned to him a number of contingent fee contracts in breast implant cases. These assignments, which were back-dated to June 1, 1996, included appellant's contracts with Ellyn Leopold and Dorothy Hunt. Thompson and appellant had a "50/50 split" referral fee agreement in 44 cases, including those of Leopold and Hunt. Appellant retained his clients' files in Colorado until he delivered them to Thompson in January 1997.

Appellant advised Ellyn Leopold, Dorothy Hunt, and other clients that he was closing his office and moving to Colorado but would keep them advised about their cases. He also advised Ellyn Leopold, Dorothy Hunt, and other clients, that he had associated James Thompson, a bankruptcy lawyer, to keep up with deadlines and help protect their interests. Never, in accord with his agreement with the State Bar, did appellant notify Ellyn Leopold or his other clients that he had been disbarred. Moreover, appellant failed to comply with his condition of community supervision that not later than January 15, 1997, he would furnish the Bell County Supervisions and Corrections Department a list of all cases from which he was entitled to a referral fee pursuant to his agreement with the State Bar.

On February 21, 1997, Evelyn R. Leopold, an attorney with a Fort Worth firm and the sister of Ellyn Leopold, mailed to appellant and Thompson the following letter.

CANTEY & HANGER, L.L.P.

ATTORNEYS AT LAW

EVELYN R. LEOPOLD

DIRECT DIAL 817 877-2853

February 21, 1997

CERTIFIED MAIL/RRR

Mr. Donald L. Busby

730 South Camino del Rio

Durango, CO 81301

CERTIFIED MAIL/RRR

Mr. James Thompson

P.O. Box 246

Copperas Cove, TX 76522

In Re: Claim of Ellyn Leopold, Breast Implant Litigant

Dear Mr. Busby and Mr. Thompson:

Through Don Busby, my sister, Ellyn Leopold, filed an action as one of the Claimants in the breast implant litigation. As I understand, Mr. Busby referred her file to Mr. James Thompson.

I fully acknowledge that you all have the expertise in this area of litigation. This letter is simply to ask a couple of questions.

1. As I understand it, the entity that is in bankruptcy is Dow Corning. I had the impression that the substance which was implanted in the Breast Implants was manufactured by Dow Chemical. How has Dow Chemical been sued as a Defendant? If so, why would actions against Dow Chemical be stayed if Dow Corning is in bankruptcy? I understand that when a corporation goes into bankruptcy, parent corporations and subsidiary corporations often have litigation stayed against them in the initial proceedings, but that the stay can often be successful lifted as to sister or parent corporations, such as Dow Chemical.

2. Also, she asked me to inquire as to what the chances are for Plaintiffs such as her receiving a recovery and, what the time table might be.

Thank you for your courtesies.

Yours very truly,

/s/

Evelyn R. Leopold

ERL/kll

In response to her letter, Evelyn Leopold received from appellant the following letter:

STATE'S EXHIBIT 18

DON BUSBY

730 SO. CAMINO DEL RIO

DURANGO, CO 81301

Tel: 970-259-5888

March 12, 1997

Evelyn R. Leopold

c/o Cantey & Hanger, L.L.P.

2100 Burnett Plaza

801 Cherry Street

Ft. Worth, Texas 76102

Re: Ellyn Leopold, Breast Implant Litigation

Dear Ms. Leopold:

Thanks for your letter of February 21, 1997 concerning the above matter.

Dow Chemical is one of two stockholders in Dow Corning, Inc.. In addition to being a stockholder, however, they conducted much of the research on the silicon that was used in the breast implants manufactured by Dow Corning.

We have sued Dow Chemical along with Dow Corning. The bankruptcy court has taken the position that if you want to proceed against Dow Chemical before the bankruptcy matter with Dow Corning is concluded, you must dismiss your claim against Dow Corning.

There is a case in Louisiana that is presently being tried against Dow Chemical by several plaintiffs. We are hopeful this will establish Dow Chemical's involvement in the breast implant liability question.

We anticipate the Bankruptcy Court will adopt a plan sometime this year. There have been two plans submitted, one by the company and one by the plaintiffs. It appears that both plans provide for some compensation for the recipient of implants, however, there the major difference is how much would be paid.

I would anticipate payments to be made in 1998 and 1999.

We will try to keep you posted on any developments.

Sincerely,

/s/

Don Busby

Both Evelyn Leopold, a lawyer, and her sister Ellyn Leopold testified that it was sometime after the exchange of the quoted letters that they were made aware of the fact that appellant had been disbarred and could no longer represent Ellyn. Evelyn Leopold reasonably believed appellant was a practicing lawyer representing her sister when she directed the letter to appellant asking for legal advice relating to her sister's personal injury claim.

Appellant characterizes his letter as merely a recitation of historical facts and insists that the State failed to prove appellant gave legal advice as alleged in the motion to revoke. The word "legal" used as an adjective means "pertaining to law." See Webster's Third New International Dictionary, 1290 (Philip B. Gove, ed., 1961). The word "advice" may be defined as "information given." Id. at 32. Here appellant made a direct letter contact with Evelyn Leopold, relating to her sister's pending litigation giving her information pertaining to law. Moreover, a "person may confer legal advise not only by word of mouth but also by a course of conduct. . . ." Brown v. Unauthorized Practice of Law Committee, 742 S.W.2d 34, 40 (Tex. App.--Dallas 1987, writ denied).

Dorothy Hunt was another one of appellant's breast-implant clients. She testified that she was unaware of appellant's disbarment until March of 1997. On February 11, 1997, Ms. Hunt had a telephone conversation with appellant, who was in Colorado. Immediately after their telephone conversation, Ms. Hunt made a written memorandum relating to the conversation. The memorandum was admitted in evidence, a portion of which follows:

STATE'S EXHIBIT 60

NOTES

I called Don Busby today and talked to him about the status of the litigation.

He said that all claims were filed. The Plaintiffs and Creditors have submitted their plan for handling their claims. Prior to that, the company has filed its plan. The judge will either decide to go with one of the plans or throw both of them out and get his own plan.

Don feels a decision will be made within the next couple of months so that, by May, we should have some kind of schedule for getting matters resolved.

He thinks the claimants may be scheduled for payment of a certain amount irrespective of their being able to prove a direct relationship to the silicone and a proviso entered whereby their additional claims can be litigated, also, under certain conditions. He said it is entirely possible (probable) that the claimants' re-evaluations will be paid for by the Defendant (the Court?), but I am unclear whether he meant the claimants would have to be re-evaluated before the "settlement" or before (and in event of) the additional litigation.

Don said the Dalkon Shield claims were handled by a Trust Committee, which ran up great expenses. They were omnipotent; their ruling was law. He doesn't think a Trust Committee will be allowed in this matter.

He is enjoying the mountains very much. . . .

Dyh

2/11/97

The State's evidence shows that appellant gave legal advice after being granted community supervision. The trial court's order revoking community supervision is supported by a preponderance of the evidence when viewed in the light most favorable to the court's order. The evidence shows that while on community supervision and while not licensed to practice law, intending to receive an economic benefit for himself, appellant gave legal advice to litigants in personal injury cases. Thus, appellant falsely held himself out as a lawyer and violated the condition of his community supervision. The trial court did not abuse its discretion in finding that appellant violated a condition of his community supervision. Appellant's second point of error is overruled.

In his fourth point of error, appellant complains that the "trial court erred in allowing testimony of the intent of the parties in entering a written agreement." Appellant's complaint relates to some testimony of the Texas Commission for Lawyer Discipline special prosecutor Lonny Morrison and chief prosecutor for the State Bar William Minkley concerning the Rule 11 Agreement. Appellant argues that the testimony of Morrison and Minkley regarding the intent of the parties to the Rule 11 Agreement should not have been admitted and that it cannot be presumed that the trial court did not consider this inadmissible testimony. Appellant cites Gipson v. State, 844 S.W.2d 738 (Tex. Crim. App. 1992).⁽³⁾ However, we need not presume anything because the trial court explicitly stated that the court would not consider testimony concerning the parties' intent. During Minkley's testimony the trial court stated: "Let me see if I can cut this a little bit short. I am not at all interested in what the intent of the Rule 11 agreement is; only with the language of the agreement." The trial court by this statement in effect changed the court's earlier rulings, sustained appellant's objections and stated that the court would not consider the intent testimony but would look to the written instrument itself. Moreover, appellant states in his brief that: "The trial court should not have allowed this testimony to be in the record, especially since it went to prove none of the material allegations in the motion to revoke community supervision." Appellant's fourth point of error is overruled.

In his third point of error, appellant declares that: "The trial court erred in allowing evidence of alleged crimes and bad acts that occurred prior to the commencement of appellant's community supervision." Appellant combined for argument his third and fourth points of error. That argument was mainly concerned with point of error four which we have already discussed. Appellant argues generally that matters occurring before he was granted community supervision were admitted "in violation of Rule 404(b)." Appellant has not identified specifically the crimes and bad acts that he alleges the evidence shows. Therefore it would be difficult and improper to address these matters. Evidence of matters occurring before appellant was granted community supervision would not have been admissible if it were admitted merely as evidence of appellant's character. However, Rule 404(b) provides that such matters may be admissible if they tend to show appellant's motive, opportunity, intent, preparation, or lack of mistake in committing the offense alleged for revocation of community supervision. Evidence of appellant's disbarment, his past dealings with clients, his association of other lawyers in handling client's cases, and fee-splitting arrangements that occurred before appellant was granted community supervision was admissible. This evidence was relevant and admissible to prove appellant's prior disbarment, his prior preparation, his motive, his intent, and his lack of mistake in continuing to hold himself out as a lawyer after his disbarment. This evidence was relevant and admissible to show that he falsely held himself out as a lawyer with intent to obtain an economic benefit for himself after his disbarment. Appellant's third point of error is overruled.

We overrule appellant's points of error and hold that the trial court did not abuse its discretion in revoking appellant's community supervision. The trial court's order revoking community supervision is affirmed.

Carl E. F. Dally, Justice

Before Justices Jones, B. A. Smith and Dally^*

Affirmed

Filed: April 22, 1999

Do Not Publish

^* Before Carl E. F. Dally, Judge (retired), Court of Criminal Appeals, sitting by assignment. See Tex. Gov't Code Ann. § 74.003(b) (West 1988).

1. We note that the order on its face does not even show it is related to these cases.

2. In opinions in a related case the Court of Criminal Appeals and this Court made reference to Ms. Mary Ludwick as an attorney pro tem. However, the capacity in which Ms. Ludwick acted was not a contested issue in that case. See Busby v. State, 951 S.W.2d 928 (Tex. App.--Austin 1997), aff'd, 984 S.W.2d 627 (Tex. Crim. App. 1998).

3. The judgment in Gipson was "reverse[d] based on Rule 81(b)(2)" of the Texas Rules of Appellate Procedure. Rule 82(b)(2) at that time required an appellate court to reverse a judgment under review unless the appellate court determined beyond a reasonable doubt that the error in the proceedings below made no contribution to the conviction or the punishment. This has been changed by the new rules of appellate procedure. Except for constitutional error, "any other error, defect, irregularity, or variance that does not affect substantial rights must be disregarded." Tex. R. App. P. 44.2(b). The new rules of appellate procedure did not become effective until September 1, 1997, which was more than a month after the revocation hearing in this case. However, notice of appeal was filed on October 20, 1997. In adopting the new rules, the Supreme Court and the Court of Criminal Appeals "ordered that: . . . 2. These amended rules take effect on September 1, 1997. Unless this order provides otherwise, they shall govern all proceedings in . . . appeals . . . thereafter brought and in all such proceedings then pending, except to the extent that in the opinion of the Court their application in a particular proceeding then pending would not be feasible or would work injustice, in which case the former procedure may be followed." Now Gipson would rarely be controlling when reviewing the nonconstitutional kind of error about which appellant complains in this point of error.

these matters. Evidence of matters occurring before appellant was granted community supervision would not have been admissible if it were admitted merely as evidence of appellant's character. However, Rule 404(b) provides that such matters may be admissible if they tend to show appellant's motive, opportunity, intent, preparation, or lack of mistake in committing the offense alleged for revocation of community supervision. Evidence of appellant's disbarment, his past dealings with clients, his association of other lawyers in handling client's cases, and fee-splitting arrangements that occurred before appellant was granted community supervision was admissible. This evidence was relevant and admissible to prove appellant's prior disbarment, his prior preparation, his motive, his intent, and his lack of mistake in continuing to hold himself out as a lawyer after his disbarment. This evidence was relevant and admissible to show that he falsely held himself out as a lawyer with intent to obtain an economic benefit for himself after his disbarment. Appellant's third point of error is overruled.