Houston Chronicle Pub. Co. v. Shaver, 68904

• Decision Date: 17 March 1982
• Docket Number: No. 68904,68904
• Parties: 8 Media L. Rep. 1314 HOUSTON CHRONICLE PUBLISHING COMPANY and Jim B. Barlow and the Houston Post Company, Relators, v. Douglas SHAVER, Judge, Respondent.
• Court: Texas Court of Criminal Appeals

Page 927

630 S.W.2d 927

8 Media L. Rep. 1314

HOUSTON CHRONICLE PUBLISHING COMPANY and Jim B. Barlow and the Houston Post Company, Relators, v. Douglas SHAVER, Judge, Respondent.

No. 68904.

Court of Criminal Appeals of Texas, En Banc.

March 17, 1982.

Charles H. Waters, Jr., Houston, for Chronicle.

James E. Crowther, Richard A. Sheehy, Houston, for Post.

John B. Holmes, Jr., Dist. Atty., Winston E. Cochran, Jr., Asst. Dist. Atty., Houston, Robert Huttash, State's Atty., Austin, for respondent.

Before the court en banc.

OPINION

CLINTON, Judge.

In this extraordinary proceeding the original jurisdiction of the Court under Article V, § 5 of the Constitution of the State of Texas is again invoked for resolution of another recurring confrontation between "Fair Trial" and "Free Press." Pressed upon us are vestiges of the common law and principles of federal and state constitutional provisions that we did not address in Houston Chronicle Publishing Co., et al v. McMaster, Judge, 598 S.W.2d 864 (Tex.Cr.App.1980) and the application of Article 1.24, V.A.C.C.P. that some of us did decide in that case. ¹ Today, though we shall allude to efforts by the Supreme Court of the United States to reconcile First and Sixth Amendment provisions in, e.g., Gannett v. DePasquale, 443 U.S. 368, 99 S.Ct. 2898, 61 L.Ed.2d 608 (1979) and Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 100 S.Ct. 2814, 65 L.Ed.2d 973 (1980), the decision we make is based on the constitutional and statutory law of the State of Texas, in a context of its meaningful historical setting.

When a people assert their independence of a national government and ordain and establish their own republic within two weeks, the rights they declare to be part of their constitution, "and shall never be violated on any pretence whatever," are more determinative of the kind of society being created than contemperaneous political statements urging its creation. In the Declaration of Rights contained in the Constitution of the Republic of Texas-just after guarantees of equal rights, an inalienable right of political power to alter government and freedom of religion-the Fourth enumeration is:

"Every citizen shall be at liberty to speak, write, or publish his opinions on any subject, being responsible for the abuse of that privilege. No law shall ever be passed to curtail the liberty of speech or of the press; ..." ²

And so it has ever been, ³ and still is declared in our Bill of Rights, Article I, § 8, viz :

"Every person shall be at liberty to speak, write or publish his opinions on any subject, being responsible for the abuse of that privilege; and no law shall ever be passed curtailing the liberty of speech or of the press. * * * " ⁴

The central idea embodied in the Constitution is simple: Express what one will, understanding one may be called to account for abusing the privilege. More expansively the Supreme Court of Texas explained in Ex parte Tucker, 110 Tex. 335, 220 S.W. 75 (1920), a classic statement of the proposition:

"The purpose of this provision is to preserve what we call 'liberty of speech' and 'the freedom of the press,' and at the same time hold all persons accountable to the law for the misuse of that liberty or freedom. * * * Punishment for the abuse of the right, not prevention of its exercise, is what the provision contemplates. * * *

The theory of the provision is that no man or set of men are to be found, so infallible in mind and character as to be clothed with an absolute authority of determining what other men may think, speak, write or publish; ... and, therefore, that every person shall be left at liberty to speak his mind on all subjects, and for the abuse of the privilege be responsible ... (according to law)."

Against that background of origin and understanding of how freedom of expression came to be so highly valued in Texas, we now state the factual developments giving rise to the proceeding before the Court. Since they are not in real dispute, and it is an accurate account, we draw heavily on the statement of the case presented by the Harris County District Attorney, representing the interests of respondent.

The present controversy arose during a capital murder trial which was conducted in the 262nd District Court, with respondent presiding. The capital murder defendant, Antonio Nathaniel Bonham, had been accused of the kidnapping, rape and murder of a teacher at a business college in Houston. Allegedly Bonham had killed the victim by running over her with her own automobile. The case received considerable publicity both immediately following the offense and at the time Bonham was brought to trial. See Texas Monthly, "The Lord's Work," January, 1982.

The Houston Chronicle Publishing Company, publisher of a daily newspaper called The Houston Chronicle (Chronicle), assigned reporter Jim B. Barlow to attend Bonham's trial and prepare reports on the proceedings for publication. The Houston Post Company, publisher of a daily newspaper called The Houston Post (Post), assigned reporter Mary Flood to cover Bonham's trial.

On October 20, 1981, the trial reached the point where the State sought to introduce Bonham's written confession. Pursuant to Article 38.22, § 6, V.A.C.C.P., and Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964), it was necessary that the court conduct a hearing in the absence of the jury to determine whether the confession was voluntarily made. The jury was excused for the day. The Jackson v. Denno hearing proceeded until the State began introducing oral admissions by the defendant Bonham in order to show that the written confession was voluntary. Bonham's attorney then expressed concern that the jurors might hear or read media accounts of these oral admissions. ⁵ When it became known that this portion of the Jackson v. Denno hearing would be conducted in the judge's chambers, from which members of the public-including reporters Barlow and Flood-would be excluded, Barlow protested closure of the hearing and asked the court to delay its action until attorneys for the Chronicle could appear and present arguments against closure, but this request was refused. The Jackson v. Denno hearing was continued in camera, with the reporters and the general public excluded. ⁶

Attorneys for the Chronicle arrived and protested the closure of the hearing, which at that point was a fait accompli. They then demanded that respondent immediately release a transcript of the closed testimony; he stated that he would release such a transcript either after the jury returned a verdict of acquittal or, if Bonham were found guilty, after the jury retired to deliberate on the punishment.

Friday, October 23, Bonham was found guilty of capital murder. After the jury retired to deliberate on punishment, the following Monday, respondent caused the transcript of the closed portion of the Jackson v. Denno hearing to be read for the reporters.

Relators initially sought to obtain one or both of two kinds of relief: (1) the relators ask this Court to issue a writ of mandamus, directing respondent to vacate the order which closed the Jackson v. Denno hearing and to release a written transcript of the closed part of the hearing; (2) the relators ask this Court to issue a writ of prohibition, preventing respondent from closing any part of the proceedings in any future trials held in his court. But we were given to understand by representations at submission on oral argument that relators concede prohibition is not a proper remedy in the premises.

In common relators assert "rights" under Article I, § 8 and Article 1.24, supra, and the First and Fourteenth Amendments; the Chronicle alone adverts to guarantees of a "public trial" in Article I, § 10 of the Constitution of the State of Texas and in the Sixth Amendment. For his part, respondent relies heavily on the construction of the Sixth Amendment rendered by the Supreme Court of the United States in Gannett Co. v. DePasquale, 443 U.S. 368, 99 S.Ct. 2898, 61 L.Ed.2d 608 (1979).

Were only the Sixth Amendment implicated, though DePasquale involved considerations attaching to a pretrial proceeding rather than, as here, a midtrial hearing, ⁷ we would be confronted with application of the dictum that "the Sixth Amendment confers the right to a public trial only upon a defendant and only in a criminal case," id., at 387, 99 S.Ct. at 2909. That statement, of course, is what gave rise to the hue and cry from many court observers and legal commentators which, it is widely held, caused the Supreme Court to bring up and decide as it did Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 100 S.Ct. 2814, 65 L.Ed.2d 973 (1980) less than one year later. ⁸ Be that as it may however, what the several opinions delivered in Richmond Newspapers determined is that "the right of the public and press to attend criminal trials is guaranteed under the United States Constitution," id., at 558, 100 S.Ct. at 2816. ⁹ Again, what confronts this Court is a midtrial hearing, constitutionally mandated to be held outside the presence of the jury. Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964). Thus, neither DePasquale nor Richmond Newspapers is directly controlling; still we may learn from their teachings.

"The problems presented by this case are almost as old as the Republic," Nebraska Press Assn. v. Stuart, 427 U.S. 539, 547, 96 S.Ct. 2791, 2797, 49 L.Ed.2d 683 (1976); Richmond Newspapers, supra, 448 U.S. at 564, 100 S.Ct. at 2821. They involve what has come to be called "a right of access" said to be guaranteed by the First and Fourteenth Amendments "to the public in general, or the press in particular," DePasquale, supra, 443 U.S. at 391-392, 99 S.Ct. at 2911; Richmond Newspapers, supra, 448 U.S. at 576, 100 S.Ct. at 2823. It is not to be confused with a "gag order" that amounts to "prior restraint on the press," ¹⁰ DePasquale, supra, 443 U.S. at 411, 99 S.Ct. at 2921....