Ex Parte Reposa, No. AP-75,965 (Tex. Crim. App. 10/28/2009), AP-75,965.
| Decision Date | 28 October 2009 |
| Docket Number | No. AP-75,965.,AP-75,965. |
| Parties | EX PARTE ADAM REPOSA, Applicant. |
| Court | Texas Court of Criminal Appeals |
This is an original application for a writ of habeas corpus in a contempt case.
The applicant, an attorney in Austin, was found in contempt of court by the Honorable Jan Breland, Judge of County Court at Law Number 6 of Travis County, for contumacious conduct during a misdemeanor trial. As an attorney representing his client in a case, the applicant was considered an officer of the court at the time he was found to be in contempt.1 Pursuant to Government Code Section 21.002, the applicant was accorded a hearing to determine his guilt or innocence.2 The Honorable Paul Davis, the Judge assigned to preside over the hearing, found the applicant guilty of contempt and assessed his punishment at ninety days in jail. Because there is no remedy by appeal for contempt proceedings, this habeas action followed.3 At the applicant's request, we set bail pending the disposition of this application.
The applicant here seeks to challenge the judgment of contempt and the sentence on five grounds. The first four grounds seek relief from the order adjudging him in contempt; the fifth ground is directed at the sentence. We find them to be without merit.
On March 11, 2008, the applicant appeared before Judge Breland as counsel for a defendant in a criminal case. Judge Breland testified at the contempt hearing that the applicant had arrived late that day, sending an assistant in his place that morning. The applicant had four or five cases on the jury docket. The client had been in jail since November, and his was one of the older cases on the docket. The applicant arrived in a hurried manner in the early afternoon. He told Judge Breland his client wanted a trial, and the client was brought into the courtroom. Judge Breland testified that she used the same procedure that she uses with every defendant; that is, she called the defendant to the bench to see if he wanted a trial and to review the range of punishment and the State's plea-bargain offer with him. When the client was brought out into the courtroom, she heard him say,
The record of the proceedings begins at this time, with the applicant telling his client, Judge Breland began to talk with the defendant and told him, In the contempt hearing, Judge Breland testified that, at this point, she saw the applicant "violently shaking his head while [she was] trying to talk to [his client]." The record of the proceedings reveals that this exchange followed:
I am going to ask [Prosecutor] Swaim, who I am sure has reviewed this case, if Mr. Williams wanted to plead no contest today, what would the State ask for?
SWAIM: 30 days, court costs, lose driver's license for 90 days, minimum — for the record, Your Honor, Mr. Reposa continues to whisper in his client's ear while I am talking.
Mr. Reposa, out of here. Right now. I saw what you did. That is contempt.
According to Judge Breland's testimony, after Swaim had protested that the applicant continued to whisper in his client's ear,
[The applicant] was standing a couple of feet from the front of the bench and, very clearly, I could see his right hand at his — a few inches from his waist and his hand was in sort of a fist and he moved his hand very quickly up and down for maybe five times. And as he did that, his eyes were rolling . . . and he was looking at me.
Judge Breland further testified that she recognized this gesture as a simulated masturbation gesture.
After the applicant left the courtroom, Mr. Gentry, another prosecutor in the courtroom at the time, described for the record the events he had witnessed.
Yes. And rolled his eyes and looked straight at me.
I have tried and tried and tried, for the record, to speak to Mr. Reposa about his conduct in Court. There is nothing I can do about his conduct out of Court, but there are things I can do about his conduct in Court. He insults me time after time after time, then comes in and apologizes. I have accepted his apologies many times. And I understand that he has probably got a lot going on, but we all have a lot going on. This ripped it. For the record, I am holding him in contempt — direct contempt of this Court.
During the contempt hearing, the applicant acknowledged that a "simulated masturbatory gesture" was a good way to describe his action in court.
In his first ground, the applicant alleges that he was denied due process and due course of law because he was denied unambiguous notice prior to trial of what the State would have to show to prove him guilty of contempt.
On March 26, 2008, the State served the applicant notice of his contempt hearing, scheduled for April 3, which included a letter, the Judgment of Criminal Contempt of Court ("Judgment") signed by Judge Breland, and the Official Notice of Basis of Accusation of Contempt of Court ("Official Notice"). The letter informed the applicant that the hearing had been "scheduled to determine the guilt or innocence and punishment for the alleged contemptuous and contumacious conduct as set out in the enclosed notice and Contempt of Court order."
The Judgment stated, in pertinent part:
On March 11, 2008, the State moved the Court to hold Adam Reposa, counsel for Defendant, in Contempt of Court for his intentional and contumacious conduct during the Court's review of the plea bargain offer to his client before jury trial. Defense counsel Reposa made a simulated masturbatory gesture with his hand while making eye contact with the Court in response to an objection by the State to his interference with the Court's plea bargain inquiry. The Court acknowledged on the record witnessing the gesture. Richard Gentry, a State's attorney during the proceeding, also witnessed the gesture and acknowledged so on the record. Subsequently, the State moved that defense counsel Adam Reposa be held in direct contempt of court for making an obscene gesture in the presence of and at the Court. The Official Notice alleged the following as the basis of the accusation:
On March 11, 2008, Adam Reposa, while appearing as counsel for [the client], in the presence of Judge Jan Breland, presiding as judge of Travis County Court at Law Number Six, made a simulated masturbatory gesture with his hand while making eye contact with Judge Breland in response to an objection by the State to his interference with Judge Breland's plea bargain inquiry. This gesture was made after the Court admonished Mr. Reposa several times to quit interfering with the Court's colloquy with the Defendant.
The applicant claims that the difference between these two documents renders ambiguous the specific conduct to which he had to answer, "whether it was the gesture in isolation, a gesture made toward the prosecution, a gesture made toward the judge, the purpose or effect of the gesture, whether there had been multiple admonishments by the trial court prior to the gesture, or any or all of the above in some combination." He maintains the issue was further confounded by Judge Davis's decision at the contempt hearing to strike the "charging instrument," that is, the Official Notice, and proceed on the Judgment alone.
Due process demands that direct contemnors, those whose contumacious acts occur in the presence of the court, be afforded reasonable notice of the specific charges and an opportunity to be heard before being finally adjudicated in contempt and sentenced.4 The question here is, what notice is adequate?
This court has held that notice was insufficient where the show-cause order failed to state the specific charges against the attorney applicant; the order merely told the applicant to appear on a specified date for a contempt hearing.5 We have also held notice not to have comported with due process where the attorney applicant was neither served with a show cause order nor informed of the charges; the trial court simply called the applicant to appear to make a "`last words' type of statement."6
At the beginning of the contempt hearing in the present case, the applicant objected that the Official Notice and the Judgment stated different conduct. In response, Judge Davis struck the Official Notice and stated he was proceeding on the Judgment. He clarified:
[W]hat I'm ruling is that the Court cannot find that it was contemptuous of Mr. Reposa to interfere with the Court's colloquy with the defendant after being admonished.
Basically, we have a contempt finding by Judge Breland that Mr. Reposa...
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