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 Sheriffâs 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.
âNever in the history of this county, that I know of, has a Class B Misdemeanor gone to District Court,â a Bonham attorney who asked not to be named said. âWhen you have a District Judge that would take a Class B Misdemeanor, somethingâs going on. It is way out of proportion.â
âI thought the case would never [based on the evidence] go to trial,â Fannin County Judge Darrell Hall said.
Dallas attorney Jimmy Verner said, âThis [case] is bizarre. This just cannot stand.â
PART OF THE STORY
âWhen I went to see Fannin County District Attorney Richard Glaser after receiving notice of a charge against me,â Pat said, âhe 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.â 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 âMotion in Limineâ filed before the trial, Glaser wrote that âthe 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.â
This excluded evidence would have countered many of the prosecutorâs allegations.
Glaserâs 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 didnât know that, according to the Texas Criminal Practice Guide, the âculpable mental state required for the [harassment] offense is that the defendant act with the intent to do any of the seven prohibited actsâ (such as calling anonymously, repeatedly, etc.).
Glaserâs motion required the Egerts to ârefrain from making any direct or indirect reference to their debt allegedly owed by Complainants.â In court they were not to âtestify to, allude toâ or even âmentionâ their motive or intent in attempting to communicate with Leggett and Fines.
Although Glaser wrote that the Egertsâ motives were âirrelevantâ to the case, they were the heart of their defense because they showed their intent. âIntent determines the offense,â according to the Guide, and âit is reversible error to refuse to allow the defendant to provide testimony concerning his intent.â The jury never knew this.
âUP TO $41,000â
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 Egertsâ money. They had earlier taken the Egertsâ 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 âat least $41,000â of their money but could not be accurate because he âkept no books or records of any kindâ he said.
The jury never knew, according to Finesâ 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 âthe Egerts had fired Fines and Leggett, and that Fines and Leggett had returned the Egertsâ logs to them.â
Both Finesâ and Glaserâs statements about firing were contradicted by sworn testimony at the trial.
On June 17, 2005, Leggett complained to the Fannin County Sheriffâs Office that Pat had phoned, saying, âIâll burn yaâll out,â 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.
âI want to assure you,â Pat told Fannin County Sheriff Kenneth Moore, âthat 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.â
The Fannin County Offense Report states that âat approx. 7:07 pmâ Pat called Leggett and stated âIâll burn yaâll out.â But the jury never knew that Leggett wrote, in another statement two days later, that she âcouldnât understand what Pat was sayingâ 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 Egertsâ 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.
âWe have not harassed Leggett & Fines,â Pat wrote Sheriff Moore. âWe have called in a businesslike manner to her house. All we want is our money returned.â
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 âhad been at Leggettâs place of business...,â which was Cedar Log Homes.
The jury never knew that the Egerts filed a theft complaint with the Delta County Sheriffâs Office early on June 17, 2005, the same day that Leggett later called in a complaint against Pat to the Fannin County Sheriffâs Office. Leggett and Fines had been notified of the Egertsâ action by the Delta County sheriff around 2 P.M. that day, five hours prior to Leggettâs complaint against Pat.
On October 15, 2005, the Egerts saw smoke coming from Leggettâs and Finesâ neighboring Delta County land even though a county burn ban was in effect. They reported the smoke to the Delta County Sheriffâs Department and Fines was charged with âViolation of Burn Banâ on that same day.
The jury never knew that five days later Fannin County Sheriffâs Deputy James Woods took Leggettâs 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, âFines comes to the VFW facility at Lake Bonham, although heâs not a member. We hired Deputy Woods for security on several occasions.â The jury never knew this.
When Deputy Woods took Leggettâs four-month-old complaint to the Fannin County DA, he swore on oath that he had reason to believe that Pat threatened Leggett âin fear of imminent serious bodily injuryâ on June 17, 2005.
OâConnorâs Criminal Code, Chapter 22, states, âThe focus of the inquiry should be whether the victim was afraid of imminent serious bodily injury at the time of the offense.â
The jury never knew that Leggett wrote in her June 19th sheriffâs statement that she told Pat, âCrazy woman, you donât scare me,â contradicting any claim of fear.
Fannin County Sheriff Kenneth Sheriff Moore described the investigation process for a misdemeanor: âThe Offense Report is forwarded to a [sheriffâs] investigator who does any follow-up, if necessary. The case is forwarded to the prosecutorâs office for review. A determination is made at the prosecution level if further investigation is needed by the submitting police agency.â
When I requested a copy of the sheriffâs 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 Leggettâs 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 countiesâ 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 âbulk of trial preparation is done by staff from the agency which originally investigated the caseâ
Responding to a Texas Public Information Act request for a copy of the DAâs investigation, Assistant County & District Attorney Brad Setterberg wrote, âNo such record exists.â
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 âinterviewed the defendantsâ 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 âTERRORISTIC THREATâ
The jury didnât know that Pat had originally been charged by the DA with a Terroristic Threat in November 2005.
The sheriffâs June 17, 2005 Incident Report (from Leggettâs call) identified an audio tape of Pat. Two days later, one âcassette recordingâ is listed on the sheriffâs Evidence/ Property Form. The defendant is âPat Egert.â 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. âI wish she had taped the one call in which I ever spoke with her,â Pat said. âIt would have cleared me.â
The jury didnât know that the DA dropped the Terroristic Threat charge four months later.
Bob Egert testified that a sheriffâs deputy threatened to put him in jail if he âdid not stop callingâ Leggett and Fines. âIf my constituant claims theyâre being harassed, then theyâre being harassed,â Bob quoted the deputy.
âWeâre an uninterested third party,â Sheriff Moore explained. âWe have no right to take sides.â But under oath, Leggett stated that the Sheriff told her to âhang up when the Egerts called.â
âI donât recall speaking to Leggett at all regarding her original complaint,â Sheriff Moore said, âand 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.â The jury never knew this.
Leggett also testified that the DA told her to âhang upâ 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 âcharged by a felony indictmentâ for harassment. The jury never knew that there had been no felony indictment.
UNABLE TO IDENTIFY
During the trial, Finesâ 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 âmemory was so hazy she couldnât pick out Bob in court. She had a one-in-three chance [with Bob] sitting at the table [with two lawyers]. Thatâs what I mean-- this case is laughable except for my clients.â
THE AUDIO TAPES
The jury never knew that eight months before the trial, Glaser allegedly told a visitor to his office that he had âtapes of Pat calling Leggett at 12:00 P.M. threatening her with bodily injuryâ and said that Pat was âgoing to burn Leggett out.â
When interviewed about Glaserâs statement, the visitor (who asked not to be named) said, âYes, that is correct, although I canât remember if he showed me the tapes or said that he had them or that someone else told him there were tapes.â
And although both the sheriffâs 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 âwork something outâ with them, one asked to talk with their attorney, and one asked to âmake arrangementsâ to have their logs returned. All ended with âbyeâ or âthank you.â
Setterberg accused Bob of threatening bodily harm to Leggett and Fines when Bob said in one of the calls, âWeâre going to take you guys down and, as I said, Vickie, I predict within one to two weeks you both will be in jail.â But Setterberg ignored what Bob claimed he meant when he said they would be taken âdownâ-- by them being in jail âwithin one or two weeks.â
Setterberg again emphasized one of Bobâs calls in which Bob said he was âgoing to implicate [Leggettâs and Finesâ] whole family in this schemeâ and that they would âbe hearing from the legal authorities.â
The jury never knew that various family members did help to evade the Egertsâ communication attempts. Again, Setterberg ignored how Bob was going to âimplicateâ them: by the âlegal authorities.â
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 âwas asking questions that were relevant to the case and twisting my answers to incriminate as if he could change my answers....â
The witness further stated, âI felt he was trying to accuse me of taking a payoff or to change my testimony and lie.â
âWhen 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,â Pat said.
The Egerts continued calling, following the âFair Debt Collectionâ 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.
âIgnorance of the law is no excuse!â 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 âignorance of the law is no excuse.â... 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.
âCRIMES & BAD ACTSâ
The jury never knew that Setterberg made a list for the trial judge of âcrimes and bad actsâ against Pat and Bob, including the following:
(1) Farmers Homeownersâ Association:
Pat and Bob âthreatened to and did falsely report the Complainants to the Farmers Homeownersâ Association....â
In her sheriffâs statement, Leggett claimed that Pat said, âIâm going to turn you into [the] Farmers Homeownersâ Association in Idabel [Oklahoma].â Under oath, Pat denied saying any such thing.
Mark Ezell of the Idabel Chamber of Commerce said, âIf thereâs a Farmers Homeownersâ Association here, Iâve never heard of it.â
Bruce Willingham, editor of Idabelâs The McCurtain Gazette, said, âIâve never heard of such a thing, and Iâve been here a lot of years.â
The jury never knew that Setterberg wrote that Pat âdid report â Leggett to an organization which did not exist.
(2) Not Enough Draws:
Pat and Bob âbreached the contract... by refusing to distribute draws... when due, [thus] causing [Leggett and Fines] to... cease work... for want of adequate funds.â
âWhen we had advanced $65,000... it became quickly apparent something was amiss,â Bob said. âThe 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.â The jury never knew this.
âFrom the git-go, Leggett and Fines had $10,000 [of my clientsâ money] in their pocket,â Taylor said to the jury. â[Leggett and Fines] were playing a shell-game.â
âDid Bobby Fines rob [the Egerts]?â Setterberg asked the jury. âNo, they paid him [$65,000]. Ben Franklin says a âfool and his money are soon parted.ââ
If Setterberg thought the Egerts were foolish to give Fines $65,000, why did he charge them with âthe crime and bad actâ of ârefusing to distributeâ 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 âthreatened to and did falsely report the Complainants to the Better Business Bureau....â
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 âfalseâ about the Egertsâ reporting it. The jury never saw the businesslike letters to and from the Better Business Bureau.
Setterberg claimed in court that Pat had âthreatenedâ to report Leggett, yet Leggett never mentioned the Better Business Bureau in her sheriffâs report. The jury never knew this.
The Better Business Bureau wrote on November 2, 2005, that the Egerts could âfile a complaint with the Texas Attorney General.â The jury never knew this.
(4) Texas Residential Construction Commission:
Pat and Bob âthreatened to and did falsely report the Complainants to the Residential Construction Commission...â
According to Pat, when she called the Texas Attorney Generalâs 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 [TRCCâs] complaint process before being allowed to seek arbitration or litigation,â the January 21, 2007 Dallas Morning News said. The jury never knew this.
âWe never once âthreatenedâ Leggett or Fines in regard to this,â 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 âbad act and crime?â
No âfalse reportâ was proven by the State. The jury never knew this.
(5) Child Protective Services:
Pat and Bob â...falsely reported [Leggett and Fines] to the Texas Department of Family Protective Services....â
The report to Child Protective Services involved four witnesses to alleged abuse of Leggettâs 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 âfound out.â The jury never knew this.
The jury did not know that âfailure to reportâ suspected child abuse is against the law in Texas. They also did not know that a âperson acting in good faith who reports... alleged child abuse... is immune from civil or criminal liabilityâ according to the Texas Family Code, Section 261.106.
Ron Hamilton, then CPS investigator in this case, wrote on August 19, 2005, âI was assigned to assess the family situation [of Leggett and Fines].... and have determined that the family does not require our service....â
Not one of the four witnesses to alleged abuse was ever contacted by him. The jury never knew this.
At the trial, Setterberg dismissed Patâs CPS report as flimsy. Under the Code, Section 261.106, a false report is a state jail felony and the âcounty attorney is responsible for the prosecution of the offense.â The jury never knew this.
Since Setterberg failed to prosecute the alleged âfalse reportingâ 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 âMercedes-drivingâ 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 witnessâs (Sheriff Mooreâs) testimony that the Egerts came to him for help, told the jury that the Egerts âdidnât want the police to handle [their problem].â
(3) Setterberg told the jury, âWe all know [the Egerts] lied through their teeth on the stand.â 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 âcame about because of [the Egertsâ] greed.â Setterburg accused the victims of an alleged $65,000 theft of âgreed.â
(5) In spite of Fines admitting to âtaking at least $41,000,â of the Egertsâ money, Setterberg attempted to persuade the jury that the checks paid to Fines had been forged on the Egertsâ home computer. âThe State suggested [the Egerts] jiggered the checks they paid to Fines,â defense attorney Taylor said. âSetterberg spent 30 minutes suggesting that... we had faked them.... It was obvious and patently clear that those checks went to Bobby Fines.â
(6) Setterberg asserted without proof that the Egerts had sent âletter after letter, threateningâ 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 Setterbergâs assertion false.
Defense attorney Taylor said, âI submit this case would be laughable if my clients didnât want to protect their good name.... the charge was so absurd.... I propose that what is right, proper and just is a âno guiltyâ verdict....
Youâve served four days [as jurors] for the lowest offense... Follow the law... and apply to the facts of the case.â
âSTICK IT TO âEMâ
Pointing to Taylor, prosecutor Setterburg said that Taylorâs speech âjust made me SICK.... You saw Pat glare at me. Did anyone else [other than Pat] call me âBrad?â Everyone else calls me âMr.â Setterburg.â
The Egerts âtook the stand,â he continued, with âtheir high-faluting air of superiority.... they wanted to take it out on Fines and Leggett.... Since this case came about because of [the Egertsâ] greed, I say you stick it to âem where it hurts.â
âThey came in from out-of-county harassing our citizens. Uh-uh.... We need to make these people have the worst Christmas of their lives,â he added.
âBEYOND A REASONABLE DOUBTâ
âA 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,â 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, âNothing in particular.â
Read 3/18/07 Part One: Homeowner convicted for reporting Builder to TRCC & the Better Business Bureau