Ex parte Arnold
| Decision Date | 09 January 1974 |
| Docket Number | 47228,Nos. 47227,s. 47227 |
| Citation | 503 S.W.2d 529 |
| Parties | Ex parte J. D. ARNOLD. Ex parte Brent STEIN. |
| Court | Texas Court of Criminal Appeals |
Ed J. Polk, Youth Law Center, San Francisco, Cal., Douglas R. Larson, Jim Maddox, Dallas, for appellant.
Henry Wade, Dist. Atty. and William J. Teitelbaum, Asst. Dist. Atty. Dallas, Jim D. Vollers, State's Atty. and Buddy Stevens, Asst. State's Atty., Austin, for the State.
Relators seek relief from a judgment in Criminal District Court No. 5 of Dallas County, holding them in contempt of court and assessing their punishment at six months' confinement in the county jail.
On April 6, 1972, relators, accompanied by a third individual whose name was not revealed but who was referred to as 'John Doe,' attempted to take pictures of Officer Robert Harden, an undercover agent for the Texas Department of Public Safety. Officer Harden, on the date of the occurrence of the act for which relators were held in contempt, had been testifying as the State's chief witness in a trial being conducted in Criminal District Court No. 5. The events constituting the alleged contemptuous conduct occurred as Officers Harden, Floyd and Maxwell were returning to the courtroom following the noon recess. As the three officers stepped from the elevator into the hall outside the courtroom, the unnamed man, 'John Doe,' pointed to Officer Harden and said, 'That's the man.' At this point, relator Stein, known also as Stoney Burns, began taking pictures of Officer Harden. When requested not to take pictures, he persisted. As Officer Harden attempted to put his arm in front of his face, Arnold and 'John Doe' allegedly grabbed Officer Harden's arms and held them to his side so that Stein could continue to take photographs. The court was immediately informed of the events which had taken place and Arnold, who was seen standing outside the courtroom, was brought before Judge Ed Gossett and, without a hearing being conducted, was held in contempt. Arnold's motion for new trial was granted and both Arnold and Stein were ordered to appear before the court and show cause as to why they should not be held in contempt. Following this hearing, both relators were found to be in contempt of court.
In one ground, it is charged that the evidence is insufficient to support the findings of the court. First, however, some background on this infrequently discussed topic is necessary.
'In this state, we have no statute defining contempts of court, and we are relegated to the doctrine of contempts at common law.' Ex Parte Green, 46 Tex.Cr.R. 576, 81 S.W. 723 (1904). Also, this State has traditionally recognized that there are two Classes of contempt.
This is generally defined as '(c)ontempts in the presence of the court (that is, in facie curiae).' Ex Parte Lake, 37 Tex.Cr.R. 656, 40 S.W. 727 (1897). The distinction between this type of contempt and constructive contempt was well stated by the Supreme Court of Texas in Ex Parte Ratliff, 117 Tex. 325, 3 S.W.2d 406 (1928):
'In the one (direct contempt) the court sees and knows of all the acts which constitute the contempt, and needs no testimony to establish their existence as facts, while in the other (constructive contempt), testimony must be heard to inform the court, and, this being so, due process of law demands that this testimony should be heard publicly, in open court, and by both sides to the controversy, after due notice to the accused of what is alleged against him, in order that he may have an opportunity to meet and explain it.' 1
Apparently, the farthest that this Court has, to date, carried the concept of direct contempt occurred in the case of Ex Parte Aldridge, 169 Tex.Cr.R. 395, 334 S.W.2d 161 (1959). There, the relator was found to be in direct contempt of the court where he circulated a publication 2 in the immediate presence of prospective jurors who were waiting outside the courtroom in the corridors of the courthouse. This Court held that 'the presence of the court' extended to and included the prospective jurors and the place assigned to them to wait. The Court found that the contemnor clearly interfered with the due administration of justice there, since a dismissal of the jurors and a postponement of the trial resulted.
Applying the above rules of law to the present fact situation, we conclude that the petitioners could not be found to be in direct contempt. 3 Both sides agree that the incident did not occur in the courtroom. And even using the rationale advanced in Aldridge v. State, supra, the record does not reflect that justice was interfered with in this cause. The State argues that the undercover agent's 'demeanor' as a witness was affected by this incident. The record reflects that this agent stated at the hearing on the contempt charges:
4
This same witness testified that his forearms were held for 'just a couple of seconds' while his picture was taken. This Court is unwilling to take this testimony and conclude that the entire administration of justice in this trial was disturbed by the incident. There was absolutely no evidence presented that the accused on trial in the courtroom (Boykin) was in any way prejudiced or harmed by the incident, nor can we see how the State's case was compromised. The agent whose picture was taken testified that he certainly did not withhold any information from the Boykin trial as a result of this incident.
Apparently, the most offensive part of the incident to the agent was the picture-taking itself, and not the 'physical restraint' imposed on him during the episode. 5
The State condemns this picture-taking because of the danger it would pose to the undercover agent if the photographs were published. As Agent Harden stated, 'I figured that they were taking the pictures in order to publish them for the dope dealers to see in the area.' Thus, the unveiling of this agent's secret identity seems to play a most important role in sending the petitioners to jail for six months.
It occurs to this Court that the agent should not be able to complain of this when he lifted that veil himself the minute he walked into the courtroom and took the stand as a witness in a public trial. Certainly, any citizen would have had the right to sit in that courtroom and witness the proceedings in the Boykin cause, as well as observing the witnesses who testified. 6
The record reflects that the same reasoning we now advance was stated by the trial judge himself at one point. One of the defense counsel inquired of Agent Harden:
'Q Have you been assured by this Court that you may expect the protection of the Court, of the confidentiality and confidential nature of your work, of the secretness of your work?
'A THE COURT: Counsel, this Court couldn't give him any such assurances if he wanted to.' (Emphasis added)
As for the taking of the pictures, the court stated at one point, That did not occur in this case.
We have no doubt that any person on the streets outside the courtroom, whether he were a member of the press or not, could have legally walked up to this agent, or any other person and taken his picture. 7 Certainly, there can be no reasonable expectation of privacy when a person places himself in a public place. 8
Is it possible to uphold the trial court on this basis? We refer the reader to the case of Ex Parte Lake, supra. This 1897 case has never been overruled and it states:
'To be guilty of a constructive contempt, there must have existed at the time some order or some writ which he (the accused) violated.'
The State infers that the 'order' that was violated in this case was the rule of evidence. The Vernon's Ann.Code of Criminal Procedure, in Article 36.03, states:
We fail to perceive how this rule was violated by the alleged contemptuous activity.
In this cause, there was No order of the court which the contemnors violated. 9 Therefore, the court had no power to summarily punish for contempt which allegedly occurred not in the presence of the court. Ex Parte Hardin, 161 Tex. 567, 344 S.W.2d 152 (1961). Unfortunately, this is exactly what happened initially in this case. When the court was informed as to what had happened in the hallway outside the courtroom, relator Arnold was immediately held in contempt, without notice or an opportunity to be heard. At this first proceeding, Arnold was given a punishment of three days in jail or a fine of $100.00. However, after requesting and receiving a trial on the contempt charge, both relators received the maximum punishment available; i.e., six months in jail and a fine of $500.00.
Petitioners allege that their First Amendment rights were violated by the court's action. This Court has spoken on the issue of the rights of reporters versus the necessity for maintaining an orderly judicial process, and we refer the reader to the case of Ex Parte Davis, 171 Tex.Cr.R. 629, 353 S.W.2d 29 (1962). There, we stated that we 'do not deny the trial court the right to punish for contempt a reporter for conduct In the presence of the court which interferes with orderly proceedings in the administration of justice.' (Emphasis added)
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In re Reece
...History of a Confused Distinction in the Jurisprudence of Texas, 26 Baylor L.Rev. 147, 150 (1974)). FN8. But see Ex parte Arnold, 503 S.W.2d 529, 533–34 (Tex.Crim.App.1974) (suggesting constructive contempt is limited to violations of orders, but going on to state that constructive contempt......
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Ex Parte Acevedo, No. 13-05-725-CR (Tex. App. 11/9/2006)
...contempt is commonly an act that constitutes a failure to comply with a valid court order. See, e.g., Ex parte Arnold, 503 S.W.2d 529, 533-34 (Tex. Crim. App. 1974); Johnson, 996 S.W.2d at 433. Notice in the due process context of criminal contempt proceedings requires timely notice by pers......
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Bell, In re
...disturbance; that the judge was required to take evidence to ascertain exact nature of tumult not controlling); Ex parte Arnold, 503 S.W.2d 529, 532 (Tex.Crim.App.1974) (not direct contempt to photograph undercover agent waiting in hallway). Here, in contrast to those cases discussed above,......
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Hirschfeld v. Superior Court In and For County of Maricopa
...to protect litigants, jurors, witnesses and lawyers from intimidation which occurs in proximity to the courtroom. Ex Parte Arnold, 503 S.W.2d 529 (Tex.Crim.App.1974), is similar to Edwards. The court held in Arnold that it was not a contempt of court to photograph an undercover government a......