A Fannin County Trial
by Sharon Banister Special Contributor
With three days left before last Christmas, the Fannin County jury of one man and five women found Bob and Pat Egert of Ben Franklin guilty of Harassment. In 2005, the Egerts had made a series of telephone calls to Bobby Fines and Vickie Leggett of Ivanhoe in accordance with the Fair Debt Collection Practices Act, and Leggett filed a complaint to the Fannin County Sheriffs Office.
The Class B Misdemeanor trial in District Court lasted four and one-half days. To the average person, the verdict would have been the end. So why write about it? The best answers come from those knowledgeable of the case.
Never in the history of this county, that I know of, has a Class B Misdemeanor gone to District Court, a Bonham attorney who asked not to be named said. When you have a District Judge that would take a Class B Misdemeanor, somethings going on. It is way out of proportion.
I thought the case would never [based on the evidence] go to trial, Fannin County Judge Darrell Hall said.
Dallas attorney Jimmy Verner said, This [case] is bizarre. This just cannot stand.
PART OF THE STORY
When I went to see Fannin County District Attorney Richard Glaser after receiving notice of a charge against me, Pat said, he pulled out his desk drawers, put his feet up on them, and told me that I would not be able to tell my side of the story in court. The jury never knew this.
An attorney, who asked not to be named, said that Glaser told him the same thing a month later. The jury never knew this.
In a Motion in Limine filed before the trial, Glaser wrote that the State believes [the Egerts] may refer to or attempt to introduce evidence of... a debt allegedly owed by the Complainants to the Defendants. These matters... are irrelevant to the case at bar.
This excluded evidence would have countered many of the prosecutors allegations.
Glasers motion, once accepted by the district court judge, effectively denied the Egerts from telling much of their side of the story, just as Glaser allegedly said would happen. The jury would never know that they had heard only part of the story.
The jury didnt know that, according to the Texas Criminal Practice Guide, the culpable mental state required for the [harassment] offense is that the defendant act with the intent to do any of the seven prohibited acts (such as calling anonymously, repeatedly, etc.).
Glasers motion required the Egerts to refrain from making any direct or indirect reference to their debt allegedly owed by Complainants. In court they were not to testify to, allude to or even mention their motive or intent in attempting to communicate with Leggett and Fines.
Although Glaser wrote that the Egerts motives were irrelevant to the case, they were the heart of their defense because they showed their intent. Intent determines the offense, according to the Guide, and it is reversible error to refuse to allow the defendant to provide testimony concerning his intent. The jury never knew this.
UP TO $41,000
On June 16, 2005, two weeks after beginning work under contract with Bob and Pat Egert to build their cedar log house, Fines walked off the job. He and Leggett, his business partner and girlfriend, had taken $65,000 of the Egerts money. They had earlier taken the Egerts paid-for logs back to their place in Fannin County and had not returned them.
The jury never knew that Fines had a history of leaving construction jobs and keeping the money. (See The Weekly Gazette, March 15, 2007.)
He admitted under oath to taking at least $41,000 of their money but could not be accurate because he kept no books or records of any kind he said.
The jury never knew, according to Fines attorney, Joe Moss of Bonham, Fines said that the Egerts fired him. Under oath, however, Fines claimed he voluntarily left the job.
The jury never knew that Glaser, before any of the facts were known, told an attorney visiting his office (who asked not to be named) that the Egerts had fired Fines and Leggett, and that Fines and Leggett had returned the Egerts logs to them.
Both Fines and Glasers statements about firing were contradicted by sworn testimony at the trial.
On June 17, 2005, Leggett complained to the Fannin County Sheriffs Office that Pat had phoned, saying, Ill burn yall out, which Pat denied The jury never knew that Leggett had earlier threatened a rival with almost those exact words, according to a witness who asked not to be named.
I want to assure you, Pat told Fannin County Sheriff Kenneth Moore, that I did not call Vickie Leggett and threaten her. I would never threaten or hurt anyone. All I want is our money back. I certainly would not want to do anything to her property as I want her to have a way to stay in business and make money so she can repay us.
The Fannin County Offense Report states that at approx. 7:07 pm Pat called Leggett and stated Ill burn yall out. But the jury never knew that Leggett wrote, in another statement two days later, that she couldnt understand what Pat was saying in that call and hung up on her. This was one of many conflicting accounts Leggett gave.
The jury never knew that, according to the Egerts AT&T Itemized Calls list, no 7:07 P.M. call exists. There is a call listed which Pat claimed was her only conversation with Leggett, but it was ninety minutes later.
We have not harassed Leggett & Fines, Pat wrote Sheriff Moore. We have called in a businesslike manner to her house. All we want is our money returned.
Leggett also claimed under oath that Cedar Log Homes was not her business. But the jury never knew that the Fannin County Offense Report stated that the Egerts had been at Leggetts place of business..., which was Cedar Log Homes.
The jury never knew that the Egerts filed a theft complaint with the Delta County Sheriffs Office early on June 17, 2005, the same day that Leggett later called in a complaint against Pat to the Fannin County Sheriffs Office. Leggett and Fines had been notified of the Egerts action by the Delta County sheriff around 2 P.M. that day, five hours prior to Leggetts complaint against Pat.
On October 15, 2005, the Egerts saw smoke coming from Leggetts and Fines neighboring Delta County land even though a county burn ban was in effect. They reported the smoke to the Delta County Sheriffs Department and Fines was charged with Violation of Burn Ban on that same day.
The jury never knew that five days later Fannin County Sheriffs Deputy James Woods took Leggetts four-month-old (and evidently uninvestigated) complaint against Pat to the Fannin County District Attorney, according to court documents.
Whether Fines and Woods were friends is unknown. What is known is that they had opportunity to be acquainted. Sonny Bingham, Bonham VFW Commander, said, Fines comes to the VFW facility at Lake Bonham, although hes not a member. We hired Deputy Woods for security on several occasions. The jury never knew this.
When Deputy Woods took Leggetts four-month-old complaint to the Fannin County DA, he swore on oath that he had reason to believe that Pat threatened Leggett in fear of imminent serious bodily injury on June 17, 2005.
OConnors Criminal Code, Chapter 22, states, The focus of the inquiry should be whether the victim was afraid of imminent serious bodily injury at the time of the offense.
The jury never knew that Leggett wrote in her June 19th sheriffs statement that she told Pat, Crazy woman, you dont scare me, contradicting any claim of fear.
Fannin County Sheriff Kenneth Sheriff Moore described the investigation process for a misdemeanor: The Offense Report is forwarded to a [sheriffs] investigator who does any follow-up, if necessary. The case is forwarded to the prosecutors office for review. A determination is made at the prosecution level if further investigation is needed by the submitting police agency.
When I requested a copy of the sheriffs investigation under the Texas Public Information Act, the only document produced was the original complaint. There was no evidence of any investigation. The Egerts were never contacted by anyone to get their side of the story. The jury never knew this.
How did Deputy Woods validate Leggetts claims? Why did he wait four months to act on it? Deputy Woods did not return my calls for comment.
A job description of a District Attorney Investigator (taken from several counties web sites) includes analyzing evidence and interviewing suspects. Other tasks include examining evidence to determine if it supports the criminal charges, and preparing for court cases which were initially investigated by other agencies. The bulk of trial preparation is done by staff from the agency which originally investigated the case
Responding to a Texas Public Information Act request for a copy of the DAs investigation, Assistant County & District Attorney Brad Setterberg wrote, No such record exists.
In a phone conversation, Jerry Wright, the Fannin County DA Investigator at the time of the Egert case, indicated that he had not investigated the case. He never interviewed the defendants to hear their side, according to the Egerts. The jury never knew this.
The jury never knew that this case apparently was never investigated on any level, at any time.
A TERRORISTIC THREAT
The jury didnt know that Pat had originally been charged by the DA with a Terroristic Threat in November 2005.
The sheriffs June 17, 2005 Incident Report (from Leggetts call) identified an audio tape of Pat. Two days later, one cassette recording is listed on the sheriffs Evidence/ Property Form. The defendant is Pat Egert. The jury never knew this. Yet no tape of Pat has ever been produced.
Leggett claimed at the trial that she did not tape Pat as she did not then own a recording devise. I wish she had taped the one call in which I ever spoke with her, Pat said. It would have cleared me.
The jury didnt know that the DA dropped the Terroristic Threat charge four months later.
Bob Egert testified that a sheriffs deputy threatened to put him in jail if he did not stop calling Leggett and Fines. If my constituant claims theyre being harassed, then theyre being harassed, Bob quoted the deputy.
Were an uninterested third party, Sheriff Moore explained. We have no right to take sides. But under oath, Leggett stated that the Sheriff told her to hang up when the Egerts called.
I dont recall speaking to Leggett at all regarding her original complaint, Sheriff Moore said, and I certainly would not have told her to hang up her telephone. I do not believe one of our deputies would have told her to hang up either. The jury never knew this.
Leggett also testified that the DA told her to hang up on the Egerts.
A FELONY INDICTMENT
The jury never knew that on October 26, 2006, the Fannin County District Clerk sent Pat and Bob each a letter stating they were charged by a felony indictment for harassment. The jury never knew that there had been no felony indictment.
UNABLE TO IDENTIFY
During the trial, Fines sister, Robin Starr, was unable to identify Bob in the courtroom even though a few minutes earlier she claimed to have conversed with him on one occasion across a dirt road . Bob and Pat denied ever seeing her before that day in court.
In his closing argument, defense attorney Randy Taylor said her memory was so hazy she couldnt pick out Bob in court. She had a one-in-three chance [with Bob] sitting at the table [with two lawyers]. Thats what I mean-- this case is laughable except for my clients.
THE AUDIO TAPES
The jury never knew that eight months before the trial, Glaser allegedly told a visitor to his office that he had tapes of Pat calling Leggett at 12:00 P.M. threatening her with bodily injury and said that Pat was going to burn Leggett out.
When interviewed about Glasers statement, the visitor (who asked not to be named) said, Yes, that is correct, although I cant remember if he showed me the tapes or said that he had them or that someone else told him there were tapes.
And although both the sheriffs Incident Report and Evidence/Property Form refers to a tape of Pat, inexplicably no tape has ever been produced.
Four months after Pat was charged with a Terroristic Threat-- and after that was dropped and a Harassment charge substituted-- a charge of Harassment was brought against Bob also.
Leggett produced four phone conversations of Bob, none dated. Each included his name and requested a return call. One asked Fines and Leggett to work something out with them, one asked to talk with their attorney, and one asked to make arrangements to have their logs returned. All ended with bye or thank you.
Setterberg accused Bob of threatening bodily harm to Leggett and Fines when Bob said in one of the calls, Were going to take you guys down and, as I said, Vickie, I predict within one to two weeks you both will be in jail. But Setterberg ignored what Bob claimed he meant when he said they would be taken down-- by them being in jail within one or two weeks.
Setterberg again emphasized one of Bobs calls in which Bob said he was going to implicate [Leggetts and Fines] whole family in this scheme and that they would be hearing from the legal authorities.
The jury never knew that various family members did help to evade the Egerts communication attempts. Again, Setterberg ignored how Bob was going to implicate them: by the legal authorities.
The jury never knew that prior to her testimony, prosecuting attorney Setterburg called a defense witness into a narrow stairwell twice and allegedly tried to influence her testimony. According to a notarized affidavit, Setterberg was asking questions that were relevant to the case and twisting my answers to incriminate as if he could change my answers....
The witness further stated, I felt he was trying to accuse me of taking a payoff or to change my testimony and lie.
When we called Fines in an attempt to collect our money, get our building materials back, and arrange for arbitration (as our contract required), he would not return our calls, and Leggett constantly hung up on us, Pat said.
The Egerts continued calling, following the Fair Debt Collection guidelines given to them by a county attorney. In court, Setterberg accused Bob of following the wrong set of debt collection rules, of not knowing the Texas statutes.
Ignorance of the law is no excuse! Setterberg exclaimed.
The late Charles Turner, former East Texas State University attorney, associate professor, and author of Texas Law, states in his book:
It is frequently stated that ignorance of the law is no excuse.... In certain situations, however... It is... a defense that a person believes his conduct is legal because he is relying on an official statement... by an... official with the responsibility to interpret that law.
The jury never knew this.
CRIMES & BAD ACTS
The jury never knew that Setterberg made a list for the trial judge of crimes and bad acts against Pat and Bob, including the following:
(1) Farmers Homeowners Association:
Pat and Bob threatened to and did falsely report the Complainants to the Farmers Homeowners Association....
In her sheriffs statement, Leggett claimed that Pat said, Im going to turn you into [the] Farmers Homeowners Association in Idabel [Oklahoma]. Under oath, Pat denied saying any such thing.
Mark Ezell of the Idabel Chamber of Commerce said, If theres a Farmers Homeowners Association here, Ive never heard of it.
Bruce Willingham, editor of Idabels The McCurtain Gazette, said, Ive never heard of such a thing, and Ive been here a lot of years.
The jury never knew that Setterberg wrote that Pat did report Leggett to an organization which did not exist.
(2) Not Enough Draws:
Pat and Bob breached the contract... by refusing to distribute draws... when due, [thus] causing [Leggett and Fines] to... cease work... for want of adequate funds.
When we had advanced $65,000... it became quickly apparent something was amiss, Bob said. The last draw of $10,000 was to result in... ten-foot high... log walls to be in place before another draw.... [When] Fines requested $6,000 more... we refused as he had not... even begun the walls. The jury never knew this.
From the git-go, Leggett and Fines had $10,000 [of my clients money] in their pocket, Taylor said to the jury. [Leggett and Fines] were playing a shell-game.
Did Bobby Fines rob [the Egerts]? Setterberg asked the jury. No, they paid him [$65,000]. Ben Franklin says a fool and his money are soon parted.
If Setterberg thought the Egerts were foolish to give Fines $65,000, why did he charge them with the crime and bad act of refusing to distribute more money? The jury never knew that Setterburg charged the Egerts with not giving more money to Fines and Leggett.
(3) Better Business Bureau:
Pat and Bob threatened to and did falsely report the Complainants to the Better Business Bureau....
The Egerts had every right to report Cedar Log Homes to the Better Business Bureau. Fines and Leggett had allegedly unscrupulously taken $65,000 of their money. There was nothing false about the Egerts reporting it. The jury never saw the businesslike letters to and from the Better Business Bureau.
Setterberg claimed in court that Pat had threatened to report Leggett, yet Leggett never mentioned the Better Business Bureau in her sheriffs report. The jury never knew this.
The Better Business Bureau wrote on November 2, 2005, that the Egerts could file a complaint with the Texas Attorney General. The jury never knew this.
(4) Texas Residential Construction Commission:
Pat and Bob threatened to and did falsely report the Complainants to the Residential Construction Commission...
According to Pat, when she called the Texas Attorney Generals Office to see what options she had, she was directed to the newly-formed Texas Residential Construction Commission [TRCC], where she reported their $65,000 loss.
"Homeowners must first go through the [TRCCs] complaint process before being allowed to seek arbitration or litigation, the January 21, 2007 Dallas Morning News said. The jury never knew this.
We never once threatened Leggett or Fines in regard to this, Pat said. Since their contract required arbitration, the Egerts had to report Leggett and Fines to the TRCC to begin any civil process to resolve their dispute. Why did the DA call this a bad act and crime?
No false report was proven by the State. The jury never knew this.
(5) Child Protective Services:
Pat and Bob ...falsely reported [Leggett and Fines] to the Texas Department of Family Protective Services....
The report to Child Protective Services involved four witnesses to alleged abuse of Leggetts grandchildren. One witness alleged that, one week before the trial, Fines visited their home and verbally expressed that he thought the trial was about him-- about what CPS had found out. The jury never knew this.
The jury did not know that failure to report suspected child abuse is against the law in Texas. They also did not know that a person acting in good faith who reports... alleged child abuse... is immune from civil or criminal liability according to the Texas Family Code, Section 261.106.
Ron Hamilton, then CPS investigator in this case, wrote on August 19, 2005, I was assigned to assess the family situation [of Leggett and Fines].... and have determined that the family does not require our service....
Not one of the four witnesses to alleged abuse was ever contacted by him. The jury never knew this.
At the trial, Setterberg dismissed Pats CPS report as flimsy. Under the Code, Section 261.106, a false report is a state jail felony and the county attorney is responsible for the prosecution of the offense. The jury never knew this.
Since Setterberg failed to prosecute the alleged false reporting as the law required, did he really believe they were guilty? Or did he know, like the Terroristic Threat, that his charge had no foundation?
MISLEADING THE JURY
(1) Setterberg told the jury that the Egerts were Mercedes-driving people. The Egerts do not own a Mercedes. They drive a 1974 jeep, a 1997 Grand Cherokee, and a 1993 GMC pickup. The jury never knew this.
(2) Setterberg, ignoring his own witnesss (Sheriff Moores) testimony that the Egerts came to him for help, told the jury that the Egerts didnt want the police to handle [their problem].
(3) Setterberg told the jury, We all know [the Egerts] lied through their teeth on the stand. Accused by Setterberg of committing perjury, the Egerts have not to date had any action taken against them by any Fannin County prosecutor.
(4) Setterburg told the jury the harassment came about because of [the Egerts] greed. Setterburg accused the victims of an alleged $65,000 theft of greed.
(5) In spite of Fines admitting to taking at least $41,000, of the Egerts money, Setterberg attempted to persuade the jury that the checks paid to Fines had been forged on the Egerts home computer. The State suggested [the Egerts] jiggered the checks they paid to Fines, defense attorney Taylor said. Setterberg spent 30 minutes suggesting that... we had faked them.... It was obvious and patently clear that those checks went to Bobby Fines.
(6) Setterberg asserted without proof that the Egerts had sent letter after letter, threatening Leggett and Fines. But the jury never knew that, according to the Egerts, there were only three businesslike, polite letters ever sent to them. None were threatening. The jury never saw a single letter, which would have proven Setterbergs assertion false.
Defense attorney Taylor said, I submit this case would be laughable if my clients didnt want to protect their good name.... the charge was so absurd.... I propose that what is right, proper and just is a no guilty verdict....
Youve served four days [as jurors] for the lowest offense... Follow the law... and apply to the facts of the case.
STICK IT TO EM
Pointing to Taylor, prosecutor Setterburg said that Taylors speech just made me SICK.... You saw Pat glare at me. Did anyone else [other than Pat] call me Brad? Everyone else calls me Mr. Setterburg.
The Egerts took the stand, he continued, with their high-faluting air of superiority.... they wanted to take it out on Fines and Leggett.... Since this case came about because of [the Egerts] greed, I say you stick it to em where it hurts.
They came in from out-of-county harassing our citizens. Uh-uh.... We need to make these people have the worst Christmas of their lives, he added.
BEYOND A REASONABLE DOUBT
A person commits the offense of Harassment if [they act] with intent to harass.... No person may be convicted of an offense unless each element of the offense is proved beyond a reasonable doubt, the Charge of the Court stated.
When asked what the main evidence was that persuaded the jury to convict Pat, the foreman of the jury said, Nothing in particular.
Read 3/18/07 Part One: Homeowner convicted for reporting Builder to TRCC & the Better Business Bureau