Saturday, February 13, 2021
The presiding judge may not testify as a witness at the trial. A party need not object to preserve the issue.
Rule 605 covers not only literal testimony by presiding judges but also its functional equivalent. So, did the judge violate Rule 605 in Hill v. State, 2020 WL 6929843 (Tex.App. 2020)?
In Hill, Orlando Hill "entered an open plea of guilty to aggravated sexual assault of a child under 14 years of age and asked the trial court to assess his punishment." Thereafter,
Hill's sister testified in support of him at his punishment hearing. She testified that during the pendency of his case, Hill had moved from Texas to Mississippi and was involved in ministry at two churches. She stated that Hill would occasionally preach at the churches but that he was not involved in teaching Sunday school. During his testimony, Hill stated that he was involved in the ministry of the two churches on a volunteer basis.
Thereafter, before announcing Hill's sentence, the judge made the following comments:
And you should have isolated yourself from as much public exposure as possible. You shouldn't have been standing in a pulpit calling attention to yourself. You shouldn't be in a church -- if the preacher is a serpent, Genesis, Old Testament, well, that's another reason not to affiliate with that church, not a reason to tell people you have pending cases because he might throw you under the bus with the congregation when the congregation deserved to know. Until you have your day in court, don't expose them to that embarrassment. Don't make innocent people suffer if it turned out you're a top story and got life in prison and the church is a bunch of [hypocrites] that don't care about children.
You shouldn't have taken the risk, is my point. You shouldn't be doing things to expose those things. In all fairness to me, I will give you -- on a technical basis, your lawyer will make a fine legal argument, since these responsibilities were not for pay, they're not jobs, but your sister described them as jobs. You described it as a job. You described it, they were -- you were a volunteer. And if my retired relatives who went and worked at night shelters and food banks and stuff, they would say it's a job but they're not getting paid, they do it for the pleasure and the service but they call it their job because they wouldn't want it to be a part of their dignity. And the fact that none of that is mentioned to the PSI officers and finding out today for the first time, it's probably not a good PR move independent on whether it's legally accurate or not. Employment means you get a salary versus not, and I can understand the distinction, and if I'm [defense counsel], I'm making it.
In rejecting Hill's ensuing appeal, the appellate court concluded that
Based on our review of the record, we conclude that the trial judge's comments regarding Hill's ministry work did not violate Rule 605. The comments were not the functional equivalent of witness testimony; rather, they were made as part of the trial judge's judicial function in explaining perhaps part of the reasoning for his sentencing decision.