Ex parte Lopez, 04-85-00155-CV

• Decision Date: 30 April 1986
• Docket Number: No. 04-85-00155-CV,04-85-00155-CV
• Parties: Ex Parte Narciso C. LOPEZ, Relator.
• Court: Texas Court of Appeals

Page 948

710 S.W.2d 948

Ex Parte Narciso C. LOPEZ, Relator.

No. 04-85-00155-CV.

Court of Appeals of Texas,

San Antonio.

April 30, 1986.

Concurring and Dissenting Opinion May 7, 1986.

John D. Wennermark, San Antonio, for appellant.

Morris Collins, San Antonio, for appellee.

Before CADENA, C.J., and REEVES and TIJERINA, JJ.

OPINION

On Relator's Application for Writ of Habeas Corpus

CADENA, Chief Justice.

When relator, Narciso C. Lopez, was divorced from his former wife on April 11, 1977, he was ordered to pay child support in the amount of $150.00 per month. In 1985 he was held in contempt for failure to make such payments and was committed to jail for 30 days "and for such time thereafter until the sum of $6,276... [amount of arrearages] and $306.50 costs is fully paid." In this original application for writ of habeas corpus relator seeks to be discharged from custody because (1) he, although indigent, was not afforded the assistance of counsel; (2) he was not given a jury trial; and (3) he is unable to make the payments for child support.

At the commencement of the contempt hearing, Gale O. Castillo, Esquire, an attorney who was present in the courtroom, told the court that he was representing relator's mother, but not relator. He added that he had told relator that it was his (Mr. Castillo's) "impression" that relator's mother "could raise a few hundred dollars, but not thousands of dollars and it may not be enough to satisfy the court." The court said, "Well, we're here on the motion for contempt. Let's just move on."

After the complainant had testified on direct examination, the court asked relator if he was going to act as his own attorney. He answered, "Yes, ma'am." The judge told relator that he could ask questions of the witness but that it was not the time for him to testify. The court told relator that if he wanted to ask any questions, "this is the time to do that." Relator replied, "O.K. You want me to ask her questions?" The court answered, "If you have any questions." When relator said, "Can I just tell you ...," the judge broke in and repeated that if relator wanted to testify he would be given that opportunity later, but that if he had any questions he should ask them at that time.

Relator then said that when "they brought [him] down from the second floor of the jail" he had some "papers" reflecting loans totaling $2,300 which he had obtained for his former wife and which he had to pay. He did not have the documents in the courtroom because jail personnel had told him that he was just "going down to the office." The judge asked relator if he wanted to ask his former wife "if that's correct." Relator answered "Uh-huh, I guess." The former wife said she did not know what relator was talking about, but added that the loans in question had been obtained during the marriage and were outstanding. The court then asked the witness other questions, none of which were suggested by relator.

In answer to the court's inquiry as to whether he had other questions, relator said he had "check stubs." The court said, "Just questions. You will have a chance to testify. Do you have any questions you want to ask her?" When relator failed to respond the court told the witness to "step down."

The court told relator that if he wanted to testify he should have a seat and "just tell us your side of this." After he was sworn, relator testified that:

1. Two weeks after the divorce in 1977, his former wife told him to "come back home because the kids needed" him. He returned to the home and he and the former wife lived together for about two years. During this period they had another child and bought a house.

2. The complainant "got mad" at him and told him she could put "his butt in jail anytime she wanted to." She told him, "Get out of here," and said she was going to "call the cops." He left the house because if he "got in trouble" he would lose his job with the Bexar county Sheriff's Department. Nevertheless, "She went and filed on" him.

3. When he "went to court" he told the judge that they had bought a house. The judge told him that he was not in court "because of the house" but "because she says you didn't give her any money." He answered he did not think it was fair because he was no longer living in the house and he was giving her what he could.

4. He knows the law is complicated, but he doesn't have enough money "to hire an attorney and sue her back 'cause I don't have time to be messing around in court.' " He lost his job with the office of the U.S. Marshall. When he received a subpoena the Marshall told him that "it would be better" if he resigned. He had not been working since December.

5. When he remarried, his former wife went to his home and "cussed out" his second wife. He would not mind spending six months in jail if that would "clear up" the $6,000, but he knew his being incarcerated would not have that result. He would start paying child support again when he found employment.

6. When he received notice in Brownsville to appear for the contempt hearing in San Antonio he had no money for the trip to San Antonio, so he "just waited til they" picked him up.

7. Until 1980 he worked for the sheriff in Bexar County. He lost that job when "she brought" him to court, and he could not make any further payments.

8. He admitted he owed the money but said he was unable to pay it.

At this point, opposing counsel broke in to say that he did not mind listening to relator's story, but that relator's testimony had "nothing to do" with the contempt hearing. If this was an objection, the court did not rule on it, but asked relator if he had anything else to say. He answered in the negative and was excused, at which point opposing counsel announced, "We rest and close." In answer to the court's question, relator said he had nothing else to present.

The judge then announced that she found that relator was in contempt of court and committed him to jail for ten days and "until he paid the arrears." The court added that it did not appear that relator could "come up" with the full amount of the arrears, but that if "he is able to come up with a substantial amount of money" the court would consider releasing him. Relator's request that he be allowed to ask a question was ignored.

After the judge announced that she had no objection to "his talking with his mother before he" went to jail, Mr. Castillo, the attorney who had previously announced that he was representing relator's mother, announced that he had been retained by the mother "for the purpose of reviewing this," and that he was going to check some points of law "as to the fact that they were together again as man and wife and produced a child and if that has any bearing as to the arrearages." The judge then announced that the court was in recess.

At no time did relator request an attorney or ask that counsel be appointed to represent him.

As early as 1925 the Supreme Court of the United States recognized that a person charged with contempt which was not committed in the presence of the court was entitled to assistance of counsel, "if requested." Cooke v. United States, 267 U.S. 517, 537, 45 S.Ct. 390, 395, 69 L.Ed. 767 (1925). The Cooke holding "represents the law of" Texas. Ex parte Hiester, 572 S.W.2d 300, 302 (Tex.1978).

In this case, while relator did not request the assistance of counsel, the record establishes that the trial court was aware that he was without funds. There is nothing in the record which supports the conclusion that he intentionally and intelligently waived the right to assistance of counsel.

The Sixth Amendment to the United States Constitution provides that the accused shall have the right to assistance of counsel "[i]n all criminal prosecutions." Absent a showing of "knowing and intelligent waiver, no person may be imprisoned for any offense, whether classified as petty, misdemeanor or felony, unless he was represented by counsel at his trial." Argersinger v. Hamlin, 407 U.S. 25, 37, 92 S.Ct. 2006, 2012, 32 L.Ed.2d 530 (1972). Despite some early confusion, it now appears settled that Argersinger does not require the assistance of counsel whenever a defendant is charged with any criminal offense for which the law prescribes imprisonment as a possible punishment. Argersinger merely means that a defendant may not be imprisoned if he was not represented by counsel. Scott v. Illinois, 440 U.S. 367, 373-74, 99 S.Ct. 1158, 1161-62, 59 L.Ed.2d 383 (1979).

It cannot be categorically said that Argersinger made the right to counsel applicable in all cases in which a person is imprisoned, without reference to whether the proceeding resulting in imprisonment is civil or criminal. Although the opinion refers to "any offense," this is immediately followed by the statement, "whether classified as petty, misdemeanor, or felony," which refers to categories of criminal offenses. This, plus the fact that the court was construing the Sixth Amendment which, by its express language is limited to "criminal prosecutions," strongly suggests, if it does not compel the conclusion, that Argersinger is controlling only if contempt proceedings are "criminal prosecutions."

Although courts have traditionally attempted to distinguish between "civil" and "criminal" contempt, it cannot be pretended that the distinction, if it in fact serves any useful purpose, is clear and free of problems. See Bessette v. W.B. Conkey Co., 194 U.S. 324, 328-29, 24 S.Ct. 665, 666-67, 48 L.Ed. 997 (1904).

In Gompers v. Bucks Stove & Range Co., 221 U.S. 418, 420, 31 S.Ct. 492, 55 L.Ed. 797 (1911), the court's effort to distinguish between civil and criminal contempt produced the following interesting statement:

It is not the fact of punishment but rather its character and purpose that often serve to distinguish between the two classes of cases. If it is for civil contempt the punishment is remedial, and for the benefit of the complainant. But if it is for criminal...