Ex parte Port, 69306

• Decision Date: 25 July 1984
• Docket Number: No. 69306,69306
• Citation: 674 S.W.2d 772
• Parties: Ex parte Odette PORT. Ex parte Bernard PORT.
• Court: Texas Court of Criminal Appeals

Page 772

674 S.W.2d 772

Ex parte Odette PORT.

Ex parte Bernard PORT.

No. 69306.

Court of Criminal Appeals of Texas En Banc.

July 25, 1984.

Randy Schaffer, Houston, for appellant.

John B. Holmes, Jr., Dist. Atty. and William J. Delmore, III, James Lavine and Bradley Beers, Asst. Dist. Attys., Houston, Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION

PER CURIAM.

The Court granted leave to file this original application for writ of habeas corpus in order to determine whether applicants are being illegally restrained in their liberty on account of their respective refusals to answer certain questions propounded before a grand jury. See Article 20.15, V.A.C.C.P.

FACTS

On June 8, 1984, seventeen year old David Isador Port was arrested and on the following day in Cause No. 404,955 he was charged by complaint with the offense of murder. Specifically that complaint alleged that in Harris County on or about June 7, 1984, Port did

"intentionally and knowingly cause the death of DEBRA SCHATZ, hereafter styled the Complainant, by shooting the Complainant with a firearm.

It is further presented that ... Port ... did then and there unlawfully intend to cause serious bodily injury to ... the Complainant, and did cause the death of the Complainant by intentionally and knowingly committing an act clearly dangerous to human life, namely, by shooting the Complainant with a firearm ..."

Bail was fixed and Port was released on bond signed by Bernard Port as cosurety June 9, 1984, conditioned that David appear before the 179th Judicial District Court of Harris County on June 11, 1984, for a "probable cause hearing."

Bernard Port is the natural father of David Isador Port; Odette Port is the wife of Bernard Port and the stepmother of David Isador Port. They were in the 179th Judicial District Court at the appointed day and time. Bernard Port and Odette Port were each served with a subpoena to appear at 11:00 a.m. that same day before the grand jury of the 176th Judicial District Court and to testify concerning the death of Debra Sue Schatz. An examining trial was set for June 22, 1984.

Applicants did appear as commanded, but invoked the privilege against selfincrimination with respect to answering questions concerning the death of Debra Sue Schatz and activities of their son David on or about June 7, 1984. To their refusal the State responded with a motion to compel testimony and to grant use immunity. Upon a hearing the court granted the motion and ordered Bernard Port and Odette Port

"to testify before the 176th Judicial District Court Grand Jury of Harris County, Texas, in regard to an investigation now being conducted by the Grand Jury into certain criminal acts alleged to have been committed on or about the 7th day of June, 1984, in Harris County, Texas, regarding the murder of Debra Sue Schatz and the conduct of David Isador Port. * * * " ¹

Subpoenas were again served, commanding the senior Ports to appear and testify before the grand jury June 15, 1984. However, on that day they filed a motion to quash subpoenas; a hearing on issues thus raised was set for June 18, 1984 and, abating the grand jury subpoenas, the judge ordered applicants to return to court that Monday morning.

The motion to quash asserted "a parent-child privilege which flows directly from the constitutional rights of freedom of religion and privacy" and further contended that the State was abusing the grand jury process in that "it intends to use the Grand Jury to gather evidence from the parents of the accused to assist the State in preparing to meet an anticipated insanity defense which might be asserted at trial," such being beyond "the scope of a legitimate Grand Jury investigation." The court convened a hearing on that motion and for the better part of Monday applicants adduced testimony and other evidence in support of their position. The judge rejected all contentions, denied the motion to quash and ordered applicants to testify before the grand jury instanter. ²

Applicants again refused to answer questions put to them in the grand jury room, and the following morning another court hearing was held. The State presented a court reporter who had taken notes of the grand jury proceedings, particularly questioning of the Ports and their respective responses. She authenticated a transcription of selective parts of her notes and testified that to practically every question asked the response was the same, viz:

"I respectfully decline to answer the question on the basis of the parent-child privilege as a matter of the exercise of my right to maintain family privacy. I also respectfully decline to answer in reliance on my Constitutional privilege against self-incrimination." ³

The transcriptions of questions asked were marked as exhibits, and by agreement the judge ordered them sealed and thus made a part of the record. Tracing the brief history of events beginning June 11, the judge then admonished applicants about the consequences of their continued refusal to answer what he found to be "relevant and proper questions;" he drew from each a stated intention "to refuse at all times in the future" to answer them; pronounced that the court would enter an order to show cause why each applicant should not be held in contempt "for failure to comply with Article 20.15;" directed them to return that afternoon to receive a copy of the show cause order and set a hearing on the order.

In the afternoon, papers pertaining to each applicant, respectively, were transferred to separate files to which a particular cause number had been assigned by the clerk of the court, and a hearing on the orders to show cause was set for June 27. A copy of the order, along with a notice to show cause, was served on each applicant.

The order and notice alike recount developments leading to and justifying a command that applicant show cause why "you should not be held in contempt of the 176th Judicial District Court Grand Jury by failing to answer proper questions set forth [in sealed exhibit] and hereby made a part of this Order ..." Both were entered in the general minutes of the court June 19, 1984. ⁴

Friday, June 22, 1984 in the 179th Judicial District Court Cause No. 404,955 came on for hearing, having been earlier set for examining trial. Attorney for David Isador Port presented a written "Waiver of Indictment and Entry of Plea of Not Guilty." Therein, over his signature and that of his counsel, David Port "hereby voluntarily waives in open court the right to be accused by an indictment in this non-capital felony case," "requests that he be charged by information and enters a plea of not guilty thereto." A transcription of the notes of the court reporter shows that counsel made representations to the same effect to the judge presiding, adding that David "is ready to personally enter a plea of not guilty if the Court desires to make inquiry of him." The judge then admonished David of his rights in the premises and obtained an express waiver freely and voluntarily made as to each one. Whereupon the judge stated, "The Court will accept the waiver," and indicated that the docket sheet will reflect that David had been arraigned and entered a plea of not guilty--as indeed it does. The same assistant district attorneys in charge of the grand jury matters, appearing for the State, voiced no objection to the action of the court. Accordingly, an examining trial became moot and it was ordered dismissed; the cause was set for July 18, 1984.

On June 27, 1984, the day for hearing applicants' response to order to show cause why they should not be held in contempt, there were filed in the cause now assigned to each applicant an "AMENDED ORDER" to show cause and "NOTICE TO SHOW CAUSE" that was served the same day. The only "amendment" of note is that instead of directing that cause be shown "why you should not be held in contempt of the 176th Judicial District Court Grand Jury" the amended order required a showing "why you should not be held in contempt of the 176th Judicial District Court." ⁵ Moreover, the new notice commands that cause be shown "why you should not be held in contempt of the 176th Judicial District Court and punished therefore pursuant to Article 20.15, C.C.P."

At the hearing applicants proved up the June 22 proceedings in Cause No. 404,955 in the 179th Judicial District Court and, without objection, introduced written waiver of indictment and entry of plea of not guilty, as well as the docket sheet containing an entry for June 22 that "Defendant duly arraigned according to law. In open court pleaded not guilty. Defendant waived indictment." ⁶ In oral argument counsel for applicants reurged contentions previously made and, additionally, submitted that their appearance before the grand jury had been rendered moot by reason of the June 22 proceedings in the 179th Judicial District Court. On this latter point the State contended that waiver of an indictment "is simply not sufficient to preclude the Grand Jury from hearing such evidence and testimony" that might show commission of greater offenses of capital murder or lesser offenses of murder; relying on King v. State, 473 S.W.2d 43, at 50 (Tex.Cr.App.1971), the prosecutor asserted, "The State is not agreeing to utilize a waiver of indictment in this case ... and elects and chooses not to proceed on information ..." The judge found that applicants "have failed to show cause why they should not be held in contempt of Court and accordingly this Court holds that both [applicants] are each guilty of contempt of Court ..." Therefore, the court assessed punishment at a fine of five hundred dollars and remanded each to jail to the custody of the Sheriff of Harris County "until such time as they may purge themselves to such contempt."

In the record are two sets of two orders, one set naming an applicant and the second naming the other applicant. In common in both sets is a ...