Court of Appeals of Texas, Thirteenth District, Corpus Christi-Edinburg
MARK A. CANTU III, Appellant,
COMMISSION FOR LAWYER DISCIPLINE, Appellee.
appeal from the 398th District Court of Hidalgo County,
Justices Rodriguez, Benavides, and Wittig 
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.
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.
Standard of Review for Admission of Evidence
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).
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.
Admission of Judicial Testimony
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 2 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
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 ...