Ex parte Moorehouse

• Decision Date: 22 April 1981
• Docket Number: No. 66216,66216
• Citation: 614 S.W.2d 450
• Parties: Ex parte Jeff MOOREHOUSE.
• Court: Texas Court of Criminal Appeals

Page 450

614 S.W.2d 450

Ex parte Jeff MOOREHOUSE.

No. 66216.

Court of Criminal Appeals of Texas, En Banc.

April 22, 1981.

Douglas Tinker, Corpus Christi, for appellant.

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

Before the court en banc.

OPINION

ONION, Presiding Judge.

This is an attempted appeal from an order of contempt entered in the 105th District Court holding petitioner in contempt for refusing to answer certain questions before a Nueces County grand jury.

It is well established that there is no right of appeal from an order of contempt. Ex parte Supercinski, 561 S.W.2d 482 (Tex.Cr.App.1977); Arnold v. State, 493 S.W.2d 801 (Tex.Cr.App.1973); Gardner v. State, 171 Tex.Cr.R. 521, 352 S.W.2d 129 (1961). See also Ex parte Cardwell, 416 S.W.2d 382 (Tex.1967).

The normal course of any review of a contempt order "regarding criminal law matters" is by an original application for writ of habeas corpus filed in this court. See Article V, § 5, Texas Constitution, as amended in 1977. Cf. Ex parte Supercinski, supra.

We do not have in the record before us an original application for writ of habeas corpus for review of the contempt order as in Supercinski.

We do find in the transcript before us an undated instrument bearing no file mark entitled "Application for Writ of Habeas Corpus." It was apparently addressed to the trial court. It does not state the normal allegations of such an application. It merely states that the petitioner Moorehouse had been found in contempt and that he gives notice of appeal to the Court of Criminal Appeals and requests the trial court to set bail pending an appeal. On the said instrument is a signed order by the trial judge setting the appeal bond at $1,000.00. The instrument is obviously, from its wording, a notice of appeal from the contempt order and a request for bail and not an application for writ of habeas corpus. We find in the record three days after the order of contempt dated October 3, 1980, a written notice of appeal dated October 7, 1980 giving notice of appeal from the "judgment of contempt." Such an appeal is a nullity. Arnold v. State, supra.

Further, it is well settled that there is no appeal from a refusal to issue or grant a writ of habeas corpus, Ex parte Smith, 85 Tex.Cr.R. 649, 215 S.W. 299 (1919); Nichlos v. State, 158 Tex.Cr.R. 367, 255 S.W.2d 522 (1952), even after a hearing. Ex parte Hughes, 20 S.W.2d 1070 (Tex.Cr.App.1929). See Article 44.34, note 5, V.A.C.C.P.

If the instrument entitled as a habeas corpus application was presented to the trial court as such, the court issued no writ of habeas corpus and conducted no hearing. From the lack of action by the trial court, there is no appeal available concerning the habeas corpus application, and further, we observe that there was no notice of appeal given concerning any habeas corpus proceeding in the trial court.

There have been cases where we have considered an application for a writ of mandamus as an application for writ of habeas corpus, e. g., Ex parte Giles, 502 S.W.2d 774, 779 (Tex.Cr.App.1973), or an application for writ of prohibition as an application for writ of mandamus, e. g., Vance v. Clawson, 465 S.W.2d 164 (Tex.Cr.App.1971), cert. den. 404 U.S. 910, 92 S.Ct. 226, 30 L.Ed.2d 182.

Even if it could be argued that the record before us should be considered as an original application for a writ of habeas corpus before this court, there are some observations that should be made.

Part of the record before us reflects a hearing on a motion to quash the subpoena issued for the petitioner Moorehouse to appear before the grand jury of the 105th District Court whose term had been extended.

In the hearing on October 3, 1980 on the motion to quash the subpoena ordering the petitioner Moorehouse to appear before the February term grand jury of the 105th District Court, Moorehouse testified he was an attorney at law in good standing with the State Bar who had represented George Taylor and Boyd Smith, suspects in the investigation on previous legal matters prior to May 15, 1980, the possible date of the incident under investigation by the grand jury. He also indicated he had conferred with them about the matters since May 15, 1980. The petitioner demanded unsuccessfully to know if he also was a suspect. In overruling the motion to quash the subpoena, the court indicated there was no attorney-client relationship involved. ¹

On the same date Moorehouse was returned to court where the prosecutor reported Moorehouse had answered two questions before the grand jury but as to all other questions he had invoked his privilege against self-incrimination (5th Amendment) and the attorney-client privilege. The questions propounded were presented to the court which ruled that certain questions could not be properly asked because of the attorney-client privilege or the 5th Amendment. Certain other questions the court determined should be answered. Moorehouse was then orally ordered to return to the grand jury to answer the questions or go to jail until he answered the questions or until the term of the grand jury expired.

On October 3, 1980, the court entered a written order holding the petitioner Moorehouse in contempt and committing him to jail until he was willing to testify. No fine was also imposed as required by Article 20.15, V.A.C.C.P. The written order was not in compliance with the law.

It has been held that incarceration for contempt for refusal to answer questions before the grand jury and a district judge on grounds that the questions would incriminate the witness would be unauthorized. Ex parte Medlin, 107 Tex.Cr.R. 421, 295 S.W. 1097 (1927).

The record shows that on October 17, 1980 Moorehouse was a named unindicted co-defendant in the indictment presented on that date charging the offense of "Engaging in organized criminal activity to commit aggravated assault."

The record further shows that on October 29, 1980 the grand jury involved, whose term had been extended, was discharged. Ex parte Jackson, 95 Tex.Cr.R. 200, 253 S.W. 287 (1923), held that a witness cited for contempt for refusal to answer questions before a grand jury and confined to jail until he so testified was purged of contempt when the discharge of the particular grand jury was ordered. "It would seem that when the end is no longer possible of accomplishment, further resort to the means would be held futile." Jackson at pp. 288-289.

Therefore, even if an original application for writ of habeas corpus was before this court, the question would be moot in view of the expiration of the grand jury term. We hold, however, this was merely an attempted appeal from an order of contempt which is not reviewable by direct appeal. The appeal is dismissed.

ROBERTS, DALLY and TEAGUE, JJ., concur in the result.

CLINTON, Judge, concurring.

Since Article 20.15, V.A.C.C.P., does not come to our attention often, while we are explicating it in this cause I would hold that it is facially unconstitutional and then give it an interpretative gloss that makes it constitutional.

Much has been written on the subject of officially compelling one to give answers which are claimed to be incriminatory, and a good deal of the holdings are collected in Lefkowitz v. Turley, 414 U.S. 70, 94 S.Ct. 316, 38 L.Ed.2d 274 (1973). ¹ Kastigar v. United States, cited in the margin, is the seminal decision on the...