EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Tuesday, July 27, 2010

Judge, Jury, And Witness: Court Of Appeals Of Texas Notes That Rule 605 Covers The Functional Equivalent Of Witness Testimony

Like its federal counterpart, Texas Rule of Evidence 605 provides that

The judge presiding at the trial may not testify in that trial as a witness. No objection need be made in order to preserve the point.

And, as the recent opinion of the Court of Appeals of Texas, Waco, in Marriott v. State, 2010 WL 2869781 (Tex.App.-Waco 2010), makes clear, Rule 605 precludes not only judicial testimony but also judicial statements of fact that are the "functional equivalent of witness testimony."

In Marriott, Kandance Yancy Marriott was convicted by a jury for the offense of engaging in organized criminal activity. The evidence presented at trial established that

Marriott and her husband, Lynn, were engaged in the business of selling manufactured homes and land in a business called One-Way Home and Land. Lynn and David Martin became partners, with Martin providing financial backing on several projects, including One-Way. Their oral agreement was that Martin would provide the money and Lynn would provide the labor for whatever was needed for each project. At each sale, Martin would first recover his investment and then any profits were to be split equally between Martin and Lynn.

Martin and Lynn purchased a vacant former Burger King restaurant building to refurbish and convert to a Dickey's Barbecue restaurant in Navarro County. Martin provided the capital for the purchase and other amounts when and as requested by Lynn prior to August of 2004. They also were working to open a Huddle House restaurant together under the same terms. Martin and Lynn also entered into several other real estate purchases.

Martin discovered in August of 2004 that he had not been paid on some closings through One-Way. He was given spreadsheets from One-Way's bookkeeper and seized many of their records. The spreadsheet given to him in early August was different from the spreadsheet he received later in August. Martin ultimately discovered eighteen checks issued by title companies in his name that he did not receive. These checks formed the basis of the underlying offense alleged in the indictment, misapplication of fiduciary property.....

The checks contained forged endorsements and were deposited into various accounts, including One-Way, the Dickey's restaurant account, and the Huddle House account. Martin was an authorized signer on the Huddle House account but had no access to it, and was not an authorized signer on any of the other accounts into which the checks were deposited. Martin denied giving anyone authority to sign his name or to deposit those funds into those accounts. The checks were dated and deposited from October of 2003 through August of 2004. Martin testified that when he confronted Marriott and Lynn, Marriott stated that Martin had told them that they could take the money and deposit it elsewhere.

Marriott testified that Lynn would give her the checks and that she would deposit them wherever he told her to. She denied ever forging Martin's name on the checks, but did admit to writing “For deposit only” and the account number below the signature on the back of the check, which was already on there when Lynn gave her each check. She also admitted to filling out some of the deposit slips to the various accounts. She denied being in charge of the businesses and portrayed herself as an unknowing victim who only did what her husband told her to. She also minimized her involvement in Dickey's and the Huddle House. She was not an authorized signer on either the Dickey's or the Huddle House bank accounts.

During the operation of One-Way, Marriott and her employees would take whatever steps were necessary to ensure that potential buyers could qualify for loans. This included creating or altering official documents, forging signatures, falsifying social security income letters, falsely verifying employment and rental qualifications, paying off creditors for buyers, creating bank accounts with the buyer's name prior to closing, and forging the buyers' signatures on documents, all allegedly taught, required, and sometimes personally accomplished by Marriott. These activities resulted in many buyers who would not have otherwise qualified for loans being approved. Linda Howard, a former employee of One-Way, testified that every employee of One-Way, including herself, participated in these activities with Marriott. Lynn's involvement in the mortgage fraud was less clear, although Marriott testified that her husband was the one directing where those checks went.

After she was convicted, Marriott appealed, claiming, inter alia, "that the trial court erred by admitting a copy of a temporary injunction signed by the trial court in a civil proceeding between the parties relating to Martin's allegations of theft and fraud because it constituted an impermissible comment on the weight of the evidence by the trial court" in violation of Texas Rule of Evidence 605. The Court of Appeals of Texas, Waco, agreed, first finding that Rule 605 precludes not only judicial testimony but also judicial statements of fact that are the "functional equivalent of witness testimony."  

The court then found that

The Honorable Robert G. Dohoney was assigned to hear both the civil case between Marriott, Lynn, and Martin and the criminal cases of Marriott and Lynn. An order was signed by Judge Dohoney during the civil case that granted a temporary injunction against Marriott and Lynn in favor of Martin, and contained specific findings regarding fraud perpetrated against Martin by Marriott. These specific allegations related to evidence introduced during the trial regarding these fraudulent acts. It is true that Judge Dohoney did not "step down from the bench" and become a witness in the very same proceeding over which he was currently presiding....

However, the findings contained in the temporary injunction in the civil case made by the same judge presiding over the criminal trial were intertwined with the jury's ultimate decision as to the existence of the combination, whether it was carrying on criminal activities, and whether or not Martin had been stolen from by Marriott. The temporary injunction, as admitted, contained findings of fact that certainly could convey to the jury his opinion of the case. We find that the trial court abused its discretion in the admission of the temporary injunction.

But while the court found error, it deemed this error to be harmless because

The overwhelming evidence was that Marriott was the individual in charge of the businesses and that everything went through her from the checks to instructions on how funds at closing were to be disbursed to the multitude of fraudulent acts perpetrated by the employees of One-Way and her husband. After examining the record as a whole, we have fair assurance that the error did not influence the jury, or had but a slight effect.  



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