EvidenceProf Blog

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

Tuesday, February 12, 2013

Foster the People: Court of Appeals of Texas Finds Judge's Instruction Wasn't Improper Testimony Under Rule 605

Similar to its federal counterpartTexas 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.

So, assume that the Department of Family and Protective Services ("Department") brings an action seeking, inter alia, termination of a mother's parental rights. Then, during trial, assume that the Department decides to seek only termination of parental rights. If the judge, over defense counsel's objection, instructs the jury

I'm going to go ahead and address the jury at this time to make it abundantly clear. The State has elected, and had elected prior to trial, to proceed on termination only. So there are no other alternatives that will be in front of the jury other than termination of parental rights.

Does this instruction violate Rule 605? According to the recent opinion of the Court of Appeals of Texas, Fort Worth, in In re C.C.K., 2013 WL 452163 (Tex.App.-Fort Worth 2013), the answer is "no."

In C.C.K., the facts were as stated above. Specifically, during the questioning of the child's foster mother,

she was asked, "If [Mother's] rights are not terminated, would you still be willing to keep the kids?" The Department objected based on relevance. The trial court overruled the objection. The Department asked to approach, and the trial court excused the jury and held a bench conference. The Department explained that although their pleadings encompassed a variety of alternatives, they were seeking only termination and had consistently objected to anything outside the scope of termination. Mother's counsel stated that if the Department was going to abandon a portion of their pleadings, they needed to do so in front of the jury or else it would unfairly prejudice Mother. The Department responded that it had already made it clear through their witnesses and that Trulson had already testified that the Department was not seeking any sort of managing conservatorship or "joint sort of co-parenting." The trial judge stated his intent to inform the jury that the Department was proceeding solely on termination, and Mother objected outside the presence of the jury, arguing that the issue of custody had been tried by implied consent. The trial court overruled Mother's objection.

The trial court then gave the instruction mentioned in the introduction. After her parents rights were thereafter terminated, the mother appealed, claiming, inter alia, that the instruction "constituted de facto testimony of the judge as a witness in violation of Texas Rule of Evidence 605." The Court of Appeals of Texas, Fort Worth disagreed, concluding that

the trial judge's statement did not convey factual information not in evidence. Nor did the trial judge's statement seek to rebut any evidence adduced at trial. Instead, the trial judge's statement told the jurors what they would be asked to decide and was akin to a preview of the jury instructions that would be given at the conclusion of the trial—all of which would focus on termination, not custody or conservatorship. Under the circumstances, we hold that in instructing the jury that there would be no alternatives other than termination before the jury, the trial judge acted within his judicial capacity to give jury instructions. The trial judge's instruction was not "the functional equivalent of witness testimony," nor did it "convey factual information not in evidence." ...The trial judge thus did not testify. Because the trial judge did not testify, but instead acted in his judicial capacity in giving a jury instruction, we hold that he did not violate rule 605



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