Cantu v. Comm'n for Lawyer Discipline

• Decision Date: 31 May 2018
• Docket Number: NUMBER 13-16-00332-CV
• Citation: 595 S.W.3d 235
• Parties: Mark A. CANTU III, Appellant, v. COMMISSION FOR LAWYER DISCIPLINE, Appellee.
• Court: Texas Court of Appeals

595 S.W.3d 235

Mark A. CANTU III, Appellant,

v.COMMISSION FOR LAWYER DISCIPLINE, Appellee.

NUMBER 13-16-00332-CV

Court of Appeals of Texas, Corpus Christi-Edinburg.

Delivered and filed May 31, 2018

Rehearing Denied August 3, 2018

MEMORANDUM OPINION

Memorandum Opinion by Justice Wittig

The Commission for Lawyer Discipline (Commission) brought a disciplinary action against attorney Mark A. Cantu III alleging that he committed professional misconduct during a bankruptcy proceeding involving Cantu, his wife, and a company that they controlled. The Commission alleged that Cantu failed to disclose significant assets in his bankruptcy filings, failed to turn over assets belonging to the bankruptcy estate, interfered with the sale of estate assets, made "material false oaths," and "demonstrated a pattern of omission, obfuscation and non-compliance in violation of his obligations to the [bankruptcy] court." The Commission alleged that these actions constituted multiple violations of the Texas Disciplinary Rules of Professional Conduct. See TEX. DISCIPLINARY RULES PROF'L CONDUCT R. 3.02, 3.03(a)(1),(5), 8.04(a)(3), reprinted in TEX. GOV'T CODE ANN. tit. 2, subtit. G, app. A (West, Westlaw through 2017 1st C.S.). Following a jury trial where the jury concluded that Cantu had committed violations of the code, the trial court entered a judgment of disbarment. Cantu appeals this judgment on numerous grounds including, inter alia, evidentiary error, legal and factual insufficiency of the evidence, and charge error.

By several of his issues, which are dispositive, Cantu alleges that the trial court erred in allowing United States Bankruptcy Judge Marvin Isgur to testify before the jury. Under the specific circumstances of this case, we agree. Accordingly, we reverse the judgment of disbarment, and we remand this case for a new trial.

I. STANDARD OF REVIEW FOR ADMISSION OF EVIDENCE

We review the admission or exclusion of evidence under an abuse-of-discretion standard. Sw. Energy Prod. Co. v. Berry–Helfand , 491 S.W.3d 699, 721 (Tex. 2016) ; Brookshire Bros., Ltd. v. Aldridge , 438 S.W.3d 9, 27 (Tex. 2014). A trial court abuses its discretion when it acts without reference to any guiding rules or principles. Crawford v. XTO Energy, Inc. , 509 S.W.3d 906, 911 (Tex. 2017) ; Downer v. Aquamarine Operators, Inc. , 701 S.W.2d 238, 241–42 (Tex. 1985).

The erroneous admission of evidence is reversible only if it probably caused the rendition of an improper judgment. See TEX. R. APP. P. 44.1(a) ; Brookshire Bros., Ltd. , 438 S.W.3d at 29. The Texas Supreme Court has declined to establish any "specific test" for determining whether evidentiary error resulted in an improper judgment, but it has held that the appellate court must review the entire record, "considering the state of the evidence, the strength and weakness of the case, and the verdict." Reliance Steel & Aluminum Co. v. Sevcik , 267 S.W.3d 867, 871 (Tex. 2008) (internal quotation marks and citation omitted); see JLG Trucking, LLC v. Garza , 466 S.W.3d 157, 165 (Tex. 2015) ; Bennett v. Comm'n for Lawyer Discipline , 489 S.W.3d 58, 73 (Tex. App.—Houston [14th Dist.] 2016, no pet.). The issue is thus "entrusted" to "the sound discretion of the reviewing court." Caffe Ribs, Inc. v. State , 487 S.W.3d 137, 144–45 (Tex. 2016) (citing State v. Cent. Expressway Sign Assocs. , 302 S.W.3d 866, 870 (Tex. 2009) ). However, "if erroneously admitted or excluded evidence was crucial to a key issue, the error was likely harmful." Sevcik , 267 S.W.3d at 873 ; see JLG Trucking, LLC , 466 S.W.3d at 165. And in contrast, the admission or exclusion of evidence is "likely harmless if the evidence was cumulative, or if the rest of the evidence was so one-sided that the error likely made no difference." Sevcik , 267 S.W.3d at 873 ; see JLG Trucking, LLC , 466 S.W.3d at 165.

II. ADMISSION OF JUDICIAL TESTIMONY

Our analysis in this case is controlled by a seminal opinion rendered by the Texas Supreme Court. See Joachim v. Chambers , 815 S.W.2d 234 (Tex. 1991) (orig. proceeding). In that case, which concerned allegations of legal malpractice, the plaintiff moved to strike the testimony of a retired district judge who continued to serve as a judicial officer by assignment, and to prohibit any party from calling that judge as an expert witness at trial. Id. at 236. The trial court denied the motion. Id. The plaintiff sought relief by mandamus. Id. at 236–37. The intermediate appellate court denied relief, however, the Texas Supreme Court conditionally granted mandamus relief and held that Canon 2 of the Texas Code of Judicial Conduct, stating that judge should avoid impropriety and appearance of impropriety, precluded the judge from testifying as an expert witness. Id. at 239–40. The relevant portions of Canon 2² currently provide:

Canon 2. Avoiding Impropriety and the Appearance of Impropriety in All of the Judge's Activities

A. A judge shall comply with the law and should act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.

B. A judge shall not allow any relationship to influence judicial conduct or judgment. A judge shall not lend the prestige of judicial office to advance the private interests of the judge or others; nor shall a judge convey or permit others to convey the impression that they are in a special position to influence the judge. A judge shall not testify voluntarily as a character witness.

TEX. CODE JUD. CONDUCT , Canon 2, reprinted in TEX. GOV'T CODE ANN. , tit. 2, subtit. G, app. B (West, Westlaw through Dec. 1, 2017). The court noted that the principles in Canon 2 do not concern a judge's competency to testify because "a judge is competent to testify at any trial except one over which he is presiding." Joachim , 815 S.W.2d at 237 (citing former TEX. R. CIV. EVID. 605 and TEX. R. CRIM. EVID. 605, see current TEX. R. EVID. 605 ). Instead, the concern addressed by Canon 2 was "the propriety of a judge's testifying":

A judge may assume the witness chair like anyone else, but he does not so easily lay aside robe and gavel. His testimony about a person's character may appear to be more than mere opinion and may be mistaken for a judicial pronouncement. Indeed, the likelihood of such misperception and the corresponding enhancement of a party's position are often the very reasons for eliciting the judge's testimony....

Id. The court further noted that a comment to the Model Code of Judicial Conduct provided that "[t]he testimony of a judge as a character witness injects the prestige of his office into the proceeding in which he testifies, and may be misunderstood to be an official testimonial." Id. at 238 (internal citation omitted). The court also considered that the relationship that develops between a judge and the lawyer who cross-examines him may influence the judge's conduct or judgment in other cases in which the attorney must appear before the judge. Id. And finally, the court stated that "the appearance of a judge as a witness threatens, rather than promotes, public confidence in the integrity and impartiality of the judiciary." Id. (internal quotations omitted). "A judge who testifies that one party to a case does or does not have good character seems, at least, to be taking sides in the litigation," and this is "inconsistent" with the role of a judge. Id. The court noted that although Canon 2 specifically restricts judges only from testifying as character witnesses, the underlying principles may apply to other judicial testimony, especially expert testimony:

A judge who testifies as an expert witness for a private litigant provides more than evidence; the judge also confers the prestige and credibility of judicial office to that litigant's position, just as a judge who testifies to the litigant's character. Expert witnesses, unlike judges, rarely appear impartial; a party does not ordinarily call an expert whose testimony is unfavorable. An expert witness is offered to support a party's position, and if the expert is a judge, the jury may mistake that support for an official endorsement. An expert witness is usually subject to more rigorous interrogation than a character witness. Thus, the opportunity for strained relations between a judicial witness and a cross-examining attorney bent on discharging his duty to zealously represent his client is perhaps greater when the judge is testifying as an expert than as a character witness. The danger that the judge will not be able to set aside the memory of the interrogation when the attorney appears before the judge in other cases is at least as real. Even when there is no actual impropriety, the appearance of impropriety looms.

The risk of such appearance of impropriety extends beyond the particular case in which the judge testifies. Not only are jurors likely to be influenced in their decision by the testimony of a judge on one party's behalf, they will see a judge appearing to take sides. The entrance of a judge into the litigation arena in aid of a combatant impacts not only the outcome of that conflict but the very idea of judicial impartiality.

Id. at 238–39. Ultimately, the Texas Supreme Court held that the Texas Code of Judicial Conduct may be used to determine whether a judge should be allowed to testify in specific circumstances. Id. at 239. Canon 2, which is now compulsory, "provides standards which must be applied in deciding whether to allow judicial testimony." Id. These standards, which are invoked whenever a judge testifies, do not "categorically" prohibit judges from testifying in court. Id. "Certainly, a judge must, like anyone else, testify to relevant facts within his personal knowledge when summoned to do so." Id. The court further noted that "[i]n some circumstances, such as when no substitute for a judicial witness is available, the testimony of a judge, even as an expert, may not trespass upon the constraints of Canon 2," and in such an "unusual situation, it...