                                  NUMBER 13-16-00332-CV

                                    COURT OF APPEALS

                           THIRTEENTH DISTRICT OF TEXAS

                             CORPUS CHRISTI - EDINBURG


MARK A. CANTU III,                                                                        Appellant,

                                                   v.

COMMISSION FOR LAWYER DISCIPLINE,                                                          Appellee.


                        On appeal from the 398th District Court
                              of Hidalgo County, Texas.


                DISSENTING MEMORANDUM OPINION
             Before Justices Rodriguez, Benavides, and Wittig1
           Dissenting Memorandum Opinion by Justice Benavides

        Because I disagree with the majority that reversible error occurred in this case, I

respectfully dissent.




        1 Retired
                Fourteenth Court of Appeals Justice Don Wittig assigned to this Court by the Chief Justice
of the Supreme Court of Texas pursuant to the government code. See TEX. GOV’T CODE ANN. § 74.003
(West, Westlaw through 2017 1st C.S.).
                          I.     ISGUR’S TESTIMONY WAS ADMISSIBLE

       Licensed lawyers in Texas with knowledge that another lawyer has committed a

violation of the Texas Disciplinary Rules of Professional Conduct that raises a substantial

question as to that lawyer’s honesty, trustworthiness, or fitness as a lawyer are duty-bound

to report another lawyer to the Commission for Lawyer Discipline. TEX. DISCIPLINARY

RULES PROF’L CONDUCT R. 8.03(a), reprinted in TEX. GOV’T CODE ANN., tit. 2, subtit. G, app.

A (West, Westlaw through 2017 1st C.S.).

       Marvin Isgur is a licensed Texas lawyer, who serves as a United States Bankruptcy

Court Judge and presided over various adversarial proceedings involving appellant Mark

Cantu’s bankruptcy. From the bench, Judge Isgur witnessed what he called “a pattern of

omission, obfuscation, and noncompliance” from Cantu. Judge Isgur testified that he felt

compelled under the disciplinary rules to forward a copy of his seventy-two page

memorandum opinion, which denied Cantu’s discharge from bankruptcy, to the

Commission to make it aware of various acts of disciplinary misconduct by Cantu. See id.

       At the underlying trial in this case, the Commission called Judge Isgur to testify as

a witness. Over Cantu’s objections, the trial court permitted Judge Isgur to testify as a fact

witness solely to matters arising out of the adversarial bankruptcy proceeding. Further,

the trial court admonished the Commission to confine Judge Isgur’s testimony to how he

ruled on certain issues involving Cantu’s bankruptcy.

       After the trial court’s ruling, the Commission asked Judge Isgur, “What was the

basis for the Court’s denial of Mr. Cantu’s discharge?” After overruling Cantu’s objection,

Judge Isgur stated the following:




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      I found that Mr. Cantu displayed a pattern of omission, obfuscation and
      noncompliance. I found under the law that he did not disregard the
      requirements of the Bankruptcy Code and then obtain the protection of a
      discharge. I specifically found—

       ....

      I specifically found that he had given false oaths in the bankruptcy court. I
      found that he had improperly concealed and transferred assets that
      belonged to the bankruptcy case. I found that he had refused to comply with
      lawful Court orders issued by me and by another judge.

      I found that he refused to comply with lawful court orders. I found that he
      failed to keep adequate records as required by Section 727(a)3 of the
      Bankruptcy Code. I found that he withheld information from the trustee in
      violation of Section 727(a)4(d) of the Bankruptcy Code. I found that he also
      in a case involving Mar-Rox—

       ....

      I found that in the Mar-Rox case he had made false oaths, that he had
      refused to comply with lawful court orders. I additionally found in that case
      he failed to keep adequate records, and I additionally found—found in that
      case that he improperly withheld information from the trustee.

       ....

      I found that each of those reasons should independently serve to deny his
      discharge.

Later, counsel for the Commission asked Judge Isgur whether he bore “any personal ill

will towards [Cantu]”. Over objection, Judge Isgur responded by stating:

      He disobeyed lawful orders of the Court, and I believe that I do hold some
      hard feelings about someone that violates orders of the Court, but beyond
      that, I do not have any animosity at all to him.

      Now on appeal, Cantu complains that Judge Isgur’s testimony was erroneously

admitted, which caused him harm and entitlement to a new trial.

      Generally, a judge is competent to testify at any trial except one over which he is

presiding. Joachim v. Chambers, 815 S.W.2d 234, 237 (Tex. 1991) (citing TEX. R. EVID.



                                               3
605). Canon 2 of the Code of Judicial Conduct specifically prohibits a judge from testifying

as a character witness. TEX. CODE JUD. CONDUCT, Canon 2. The policy reasons as set

forth by Joachim for this particular prohibition are: (1) a judge carries more prestige by

virtue of his office and an opinion may be mistaken for a judicial pronouncement; (2) cross-

examining a judge may put an attorney on the opposing side in the “awkward position” of

alienating the judge; (3) an attorney may hesitate to impeach a judge on the witness stand

because they are ordinarily not in a posture to interrogate a judge; (4) a judge serving as

a character witness threatens public confidence in the integrity and impartiality of the

judiciary because at the very least, it creates an appearance that the judge is taking sides

in litigation, which is inconsistent with the role of a judge. See Joachim, 815 S.W.2d at

238.

       The Texas Supreme Court has extended these principles to other judicial testimony

such as expert testimony. See id. The policy reasons for extending the application of this

rule to expert testimony is that a judge “provides more than evidence.” Id. A judge also

confers the prestige and credibility of judicial office to the litigant’s position. Id. Expert

witnesses, unlike judges, rarely appear impartial. Id. Since expert witnesses are used to

support a party’s position, the jury may mistake the judge’s testimony for an official

endorsement. Id. Expert witnesses are also subject to “more rigorous interrogation” than

character witnesses, and the risk for straining the relationship between a judge and an

attorney is greater. Id. Finally, the risk of an appearance of impropriety extends beyond

a particular case in which the judge testifies. Id. at 238–39. “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


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arena in aid of a combatant impacts not only the outcome of that conflict but the very

idea of judicial impartiality.”   Id.   Thus, in determining whether judges should be

permitted to testify in specific cases, courts should utilize these guidelines. Id.

       This case presents special facts and circumstances concerning the disbarment of

a lawyer, the strongest disciplinary sanction that any lawyer may face. See TEX. RULES

DISCIPLINARY P. R. 1.06(Z), reprinted in TEX. GOV’T CODE ANN., tit. 2, subtit. G, app. A

(West, Westlaw through 1st C.S.). In its disciplinary petition, the Commission alleged that

Cantu violated the following rules of professional conduct:

       •   Rule 3.02: In the course of litigation, a lawyer shall not take a position that
           unreasonably increases the costs or other burdens of the case or that
           unreasonably delays resolution of the matter;

       •   Rule 3.03(a)(1): A lawyer shall not knowingly make a false statement of material
           fact or law to a tribunal;

       •   Rule 3.03(a)(5): A lawyer shall not knowingly offer or use evidence that the
           lawyer knows to be false;

       •   Rule 3.04(d): A lawyer shall not knowingly disobey, or advise the client to
           disobey, an obligation under the standing rules of or a ruling by a tribunal except
           for an open refusal based either on an assertion that no valid obligation exists
           or on the client’s willingness to accept any sanctions arising from such
           disobedience;

       •   Rule 8.04(a)(1): A lawyer shall not violate these rules, knowingly assist or
           induce another to do so, or do so through the acts of another, whether or not
           such violation occurred in the course of a client-lawyer relationship; and

       •   Rule 8.04(a)(3): A lawyer shall not engage in conduct involving dishonesty,
           fraud, deceit, or misrepresentation.

See TEX. DISCIPLINARY RULES PROF’L CONDUCT R. 3.02, 3.03(a)(1), 3.03(a), 3.04(d),

8.04(a)(1), 8.04(a)(3) (reprinted in TEX. GOV’T CODE ANN., tit. 2, subtit. G, app. A (West,

Westlaw through 1st C.S.).



                                                  5
       All the Commission’s allegations related exclusively to the complaint made by

Judge Isgur. At the underlying trial in this case, Judge Isgur’s testimony related to events

and actions of Cantu that he personally witnessed and observed from the bench and

reported to the Commission. This testimony was unique to Judge Isgur because only he

could provide jurors with perspective on the violations he personally observed Cantu

commit, and Judge Isgur believed those violations compelled him to report them to the

Commission under disciplinary rule 8.03(a). Simply put, Judge Isgur’s observations of

Cantu, while serving as the presiding judge in Cantu’s bankruptcy proceeding, provided

the basis for each of the Commission’s allegations. Specifically, Judge Isgur testified that

he found that: (1) Cantu had given false oaths to the court; (2) Cantu had “improperly

concealed and transferred assets” that belonged to the bankruptcy case; (3) Cantu refused

to comply with court orders issued by Judge Isgur and another judge; (4) Cantu failed to

keep adequate records as required by the Bankruptcy Code; and (5) in another bankruptcy

case involving a company called Mar-Rox, Cantu made false oaths, refused to comply with

court orders, and improperly withheld information from the trustee. Judge Isgur also

testified that Cantu’s actions in his court “were the most litigious” that he had ever seen in

an individual bankruptcy case and such actions “would have dramatically driven up the

expenses in the case.” Finally, Judge Isgur testified that because Cantu repeatedly failed

to comply with court orders, it would require enforcement hearings, which ultimately drove

up legal costs.

       Cantu argues that Judge Isgur provided “de facto expert testimony.” I disagree.

The Texas Rules of Evidence lay out a dichotomy for opinion testimony by lay witnesses

versus expert witnesses. A lay witness’s opinion testimony is limited to one that is: (a)



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rationally based on the witness’s perception; and (b) helpful to clearly understanding the

witness’ testimony or to determining a fact in issue. See TEX. R. EVID. 701. On the other

hand, a witness who is qualified as an expert based upon knowledge, skill, experience,

training, or education may testify in the form of an opinion or otherwise if the expert’s

scientific, technical, or other specialized knowledge will help the trier of fact to understand

the evidence or to determine a fact in issue. Id. R. 702.

        While Judge Isgur testified about his educational and judicial background,

understanding Judge Isgur’s background as a judge was important for the jury to

understand in what capacity Judge Isgur witnessed Cantu’s alleged disciplinary violations,

as well as in what context he observed them.                 Nothing in Judge Isgur’s testimony

emphasized or applied use of his knowledge, skill, experience, training, or education as a

judge and how he reached his findings nor does the record show that it particularly

bolstered his testimony or amounted to expert opinion testimony. See Reid Rd. Mun. Util.

Dist. No. 2 v. Speedy Stop Food Stores, Ltd., 337 S.W.3d 846, 851 (Tex. 2011) (“[W]hen

the main substance of the witness’s testimony is based on application of the witness’s

specialized knowledge, skill, experience, training, or education to his familiarity with

the property, then the testimony will generally be expert testimony within the scope of

Rule 702.”); see also TEX. R. EVID. 702. Thus, I disagree that such testimony rose to the

level of expert witness testimony, but instead conclude that it was simply lay witness

opinion testimony.2      Judge Isgur did testify about legal matters, but Cantu’s alleged

behavior and actions in those specific legal matters serve as the basis for the



        2 The majority also discusses that Judge Isgur’s testimony amounted to character testimony. My
review of Cantu’s briefing shows that such an argument was not raised and is therefore precluded from our
review. See TEX. R. APP. P. 38.1(i).

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Commission’s disciplinary proceeding.      Each piece of Judge Isgur’s testimony was

necessary to aid the jury in ultimately determining whether Cantu violated the disciplinary

rules.

         Accordingly, based on the unique nature of these proceedings and specific

knowledge possessed by Judge Isgur, such testimony was essential to the Commission’s

case and no substitute testimony was available, particularly since Judge Isgur was the

chief complainant to the Commission regarding what he personally witnessed.           See

Joachim, 815 S.W.2d at 239 (“Certainly, a judge must, like anyone else, testify to relevant

facts within his personal knowledge when summoned to do so.”). Additionally, I would

conclude that this testimony does not enter the territory of impropriety that Canon 2 seeks

to prevent because it is related to a matter of importance to the practice of law and its

disciplinary rules, which all licensed lawyers in Texas are duty-bound to follow. See TEX.

DISCIPLINARY RULES OF PROF’L CONDUCT R. 8.03(a).

         Finally, Judge Isgur testified over objection that he held “some hard feelings”

against Cantu solely because he disobeyed lawful orders of the court, but beyond that, he

did not have any animosity toward Cantu. Assuming without deciding that such testimony

was erroneously admitted, I would find that it is harmless. This testimony was a fleeting

response to a question by the Commission toward the end of its direct examination. I

cannot conclude that such testimony was crucial to a key issue so as to constitute harmful

error because the overwhelming majority of Judge Isgur’s testimony focused solely on his

ruling and the basis for his reporting Cantu to the Commission. See Sevcik, 267 S.W.3d

at 873.




                                                8
       Based on the foregoing, I would conclude that there was no abuse of discretion in

admitting Judge Isgur’s testimony and any alleged error in the admission of his testimony

was harmless. I would thus overrule Cantu’s issues arguing otherwise.

                                    II.    CONCLUSION

       My examination of the record and the applicable law concerning the admission of

Judge Isgur’s testimony shows no reversible error that would entitle Cantu to the relief he

now seeks on appeal. The majority and I diverge as to the admissibility and alleged harm

resulting from Judge Isgur’s testimony, and accordingly, I respectfully dissent.

       Generally, a dissenting opinion addresses the appellant’s remaining issues to

provide the litigants with the benefit of a proposed resolution of the case. However,

because the majority has resolved this case on the threshold issue of the admissibility of

Judge Isgur’s testimony, it is neither necessary nor appropriate for this separate opinion

to address the remaining multitude of alternative dispositive issues addressed by the

parties on appeal. See TEX. R. APP. P. 47.1, 47.4.


                                                               GINA M. BENAVIDES,
                                                               Justice



Delivered and filed the
31st day of May, 2018.




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