Ex parte Gibson

• Decision Date: 05 June 1991
• Docket Number: No. 71217,71217
• Citation: 811 S.W.2d 594
• Parties: Ex parte Michael R. GIBSON.
• Court: Texas Court of Criminal Appeals

Page 594

811 S.W.2d 594

Ex parte Michael R. GIBSON.

No. 71217.

Court of Criminal Appeals of Texas En Banc.

June 5, 1991.

Charles Louis Roberts, El Paso, for relator.

Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION

PER CURIAM.

This is an original application for writ of habeas corpus. Tex.Code Crim.Proc.Ann. art. 11.07. We will grant relief.

Applicant challenges a judgment of contempt dated November 14, 1990, in Cause No. 08-90-00052-CR, in the Court of Appeals for the Eighth District of Texas. 804 S.W.2d 920. The judgment finds applicant guilty of contempt and assesses punishment at a fine in the amount of Three Hundred Dollars ($300). Applicant refused to pay the fine and was incarcerated.

Applicant filed the instant application seeking to challenge the judgment of contempt on seven different grounds. On November 30, 1990, this Court stayed the judgment of contempt, released applicant on a One Hundred Dollar ($100) personal bond and ordered the Court of Appeals to respond to the grounds for relief presented within applicant's application. On December 17, 1990, this Court received a letter from the Court of Appeals which indicated that the Court of Appeals did "not desire to file anything in addition to what is contained in the record." On January 22, 1991, this Court entered a second order directing the offended judges of the Court of Appeals to respond. In a letter dated January 29, 1991, the judges of the Court of Appeals again refused to respond.

The judgment resulted from applicant's representation of Armando Lopez Torres in an appeal from a criminal conviction. On December 4, 1989, Torres pled guilty to the offense of murder. After Torres pled "true" to two prior convictions alleged for purposes of enhancement, the trial court assessed punishment at thirty-five years. On December 21, 1989, applicant filed a motion for new trial on Torres' behalf. ¹

Applicant requested the Court of Appeals to extend the deadline for the filing of "motions for new trial and arrest of judgment under a judgment of conviction" based on the court reporter's inability to complete the statement of facts within the time limit prescribed for the filing of a motion for new trial. Applicant alleged that the statement of facts was necessary to cogently examine the trial record with respect to a claim of ineffective assistance of counsel. On February 15, 1990, the Court of Appeals issued a published opinion denying the request.

The motion for new trial was overruled by operation of law on February 19, 1990, and applicant filed notice of appeal two days later. On April 19, 1990, the transcript from the Torres' appeal was filed with the Court of Appeals. The court reporter's notes were filed on May 9, 1990.

On June 6, 1990, the Court of Appeals issued a published opinion denying applicant's request to abate the Torres appeal and to remand the cause to the trial court for a hearing on the issue of ineffective assistance of counsel at trial. On June 27, 1990, the Court of Appeals issued another published opinion, denying rehearing of the previously issued opinion dated June 6, 1990.

On June 29, 1990, the Clerk of the Court of Appeals sent a letter to applicant informing him that the brief in the Torres appeal was three weeks late. The letter directed applicant to file the brief and to file a motion for extension of time in order to file the brief.

Approximately a week later, applicant wrote the Clerk of the Court of Appeals, indicating that he would not file a brief or a motion for extension of time because there was no record upon which to predicate an appeal. The Court of Appeals responded with a letter on July 24, 1990, again directing applicant to file a brief and a motion for extension of time.

On August 10, 1990, the Court of Appeals entered an order directing applicant to file a brief in the Torres appeal by August 31, 1990. Applicant mailed the Clerk of the Court a letter dated August 13, 1990 which is the subject of the instant contempt action.

The letter, directed at the Clerk of the Court, states:

I am in receipt of your letter of July 24, 1990, respecting the above referenced. Please forgive my delay in replying. However, I suffered a fairly serious back injury a short time after receiving your letter and have been running behind for the last couple of weeks.

I have no wish to express disrespect for either your office or the court. However, the court has now published two opinions containing a number of snide references to sleazy criminal defense lawyers and their efforts to conduct fishing expeditions. I consider this to be an intentional reflection on me professionally and I don't like it. Your most recent letter indicates that it is my problem to extract the court from the corner into which it has backed itself, in part, I might add, by basing rulings on repealed statutes.

Had the court followed the plain intent of the appellate rules instead of seeking ways to publicly insult criminal defense lawyers, it would not have the problem. Since I followed the rules and did not create the problem, I do not see that it is up to me to file some sort of brief not contemplated or permitted by law in order to bail the court out of its situation.

I suppose the court should set its hearing. I need to make of record the matters contained in our correspondence so when the case gets to the Court of Criminal Appeals, I will...