When Is Judge's Comment Considered ''Testimony'' ?

In Great Liberty Life Ins. Co. v. Flint, 336 S.W.2d 434 (Tex. Civ. App.-Fort Worth 1960, no writ.) the court proceeded to trial in the absence of the defendant company or its attorney after the case had been reset for trial on numerous occasions. At the hearing on the defendant's motion for new trial, counsel testified that he had contacted the trial judge by telephone a month prior to the trial date in question. He further testified that the judge had agreed to reset the case for two weeks. At the conclusion of the testimony, the trial judge said, "Let the record show that the Court did not talk to anybody on that date about the case." Id. at 436. In deciding the merits of the appeal, the appellate court characterized the trial judge's comment as "testimony." However, because the judge had not been sworn as a witness or made himself available for cross-examination, the court of appeals concluded it could not properly consider his remarks. Id. When Great Liberty was decided, it was not considered improper for a judge to testify in the same proceeding over which he was presiding. A judge presiding over a trial could testify as a witness in the case so long as he was sworn like any other witness. See Howell v. State, 146 Tex. Crim. 454, 455, 176 S.W.2d 186, 187 (Tex. Crim. App. 1943). The current rules of evidence expressly forbid this practice. Rule 605 provides: 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.