Ex parte Rose

Decision Date16 May 1984
Docket NumberNo. 69265,69265
Citation704 S.W.2d 751
PartiesEx parte Robert ROSE.
CourtTexas Court of Criminal Appeals
OPINION

ONION, Presiding Judge.

This is an original application for writ of habeas corpus filed in this court in which the applicant, an attorney and an officer of the court, seeks relief from a judgment of the Criminal District Court No. 2 of Dallas County holding him in contempt of court. 1

Applicant alleges he is illegally confined and restrained of his liberty by an order of contempt entered on January 30, 1984, in Cause No. F83-A0472MI by the Honorable Don Metcalfe, judge of the aforesaid district court, and assessed a fine of $500.00. Applicant contends the said contempt order is improper and void.

It appears that applicant was representing the defendant in said Cause No. F83-A0472MI who was charged with rape, and that applicant was held in contempt for asking the prosecutrix on cross-examination "in substance if she had been raped before." Prior to the said interrogation, the court had entered an order for the applicant to comply with V.T.C.A., Penal Code, § 22.065.

The respondent judge has been asked to respond and he has. The record is now before this court.

On January 23, 1984, prior to the voir dire examination of the jury panel, the record reflects the court called the applicant's attention to § 22.065 of the Penal code and stated:

"... This is an indictment charging the Defendant with the felony offense of rape and under that particular section of the Penal Code as it is now numbered. I want to caution you, Mr. Rose, that you give strict compliance to that and that no questions are to be asked of the victim, alleged victim, and no evidence is to be offered in any way, going into prior sexual activity of the victim under that statute. First, advise the Court to retire the jury and outside the presence of the jury in a closed hearing, make it known to the Court your desires regarding going into such matters."

The prosecutor then informed the court a motion in limine along the same lines was being typed and asked it be granted. The court stated it would be granted.

The prosecutrix testified, as reflected by a stipulation by the parties for this record, that on February 27, 1982, she lived alone in a Dallas apartment; that after arriving home from work, she watched television, and then went to bed. About midnight she answered a knock at the door and found the defendant there. He asked for Barbara, her foster sister, who had formerly lived there. Since it was cold she asked him in, while she got Barbara's address and telephone number. They began to talk about Barbara and she smelled liquor on the defendant's breath. He asked if she had any "pot" and she answered "No," but said she would smoke a "joint." The defendant went to his car and returned. They then chatted and smoked a "joint." The prosecutrix observed he was "very drunk and high," and the defendant didn't want to "get back on the street in that condition." The prosecutrix finally agreed to drive him to a motel.

When she went to the bathroom, the defendant grabbed her from behind. He took her to the bedroom/living room and told her to commit oral sodomy on him. She felt a thin flat object in his pocket which could have been a knife. He told her he would cut her if she didn't do what he wanted. He forced her to commit oral sodomy on him and then he had sexual intercourse with her. After this he left. She drove to a hospital and called the police.

The transcription of the court reporter's notes reflects the following on the cross-examination of the prosecutrix:

"By Mr. Rose:

"Q You say you bought a gun after this?

"A Yes, sir.

"Q And you got a peep-hole installed?

"A Yes.

"Q I take it nothing like that ever happened to you before?

"MR. PHILLIPS (Prosecutor): Object strenuously to that ...."

"THE COURT: I sustain the objection. Ladies and gentlemen, would you go back in the jury room, please.

(Whereupon, the jury was retired and the following proceedings were had outside the presence and hearing of the jury.)

"THE COURT: Mr. Rose, before this trial started I went over the Penal Code with you. I pointed out what it says about the prior sexual conduct of a victim of a rape case. And I told you at that point in time that you could not inquire into that without going into chambers and having a sealed, closed meeting that was under our law, closed to the public. Before I say anything more, have you got any good reason to explain to me why you would ask this witness if she had, in essence, ever been raped before?

"MR. ROSE: Judge, I understand that to be her promiscuity as related to promiscuity and the prosecutor brought up the fact about the gun, he brought up the fact about the peep-hole--

"THE COURT: No, your question to her, has anything like this ever happened to her before.

"MR. ROSE: I was not talking about promiscuity--

"THE COURT: You are talking about if she's ever been raped before, right?

"MR. ROSE: I am asking her, yes, sir.

"THE COURT: All right.

"MR. ROSE: Has nothing to do with sexual conduct regarding promiscuity or sexual conduct--

"THE COURT: That, Mr. Rose, may be decided by somebody else but you are in contempt of Court and your punishment is fixed at a five hundred dollar fine. I will hold this in abeyance pending the end of the trial. At the end of the trial I will enter an order, give you your rights and have you certified to the Presiding Judge and let you have your personal bond. We are going to take a ten minute recess and if this happens again during the course of this trial, after all the admonishments I have given you, I will deal with it again. Do you understand what I'm saying?

"MR. ROSE: Yes, sir. Judge--

"THE COURT: You take the next ten minutes to go read the Code of Criminal Procedure and the Penal Code and specifically the article in the Penal Code dealing with this evidence, because as far as I'm concerned, you are in direct violation, not only in this statute but by my order in this whole matter...."

Thereafter on January 30, 1984, after a hung jury and a mistrial, the court entered a written order of contempt for intentionally asking the question "I take it nothing like that ever happened to you before?" as the question was a direct inquiry as to whether the witness had been raped previously, and was in violation of V.T.C.A., Penal Code, § 22.065, and the previous order of the court. The fine assessed was $500.00. On the same date the respondent judge entered another order suspending the order of contempt and releasing applicant on his personal recognizance, and forwarding the matter to the Honorable John Ovard, Presiding Judge of the First Administrative District, for further proceedings in accordance with Article 1911a, V.A.C.S. 2 On February 6, 1984, the said Presiding Judge assigned the Honorable David Moore, a retired district judge, to the said Criminal District Court No. 2 to hear the contempt matter. On the same date a show cause order was issued and served on the applicant.

On February 10, 1984, the applicant appeared with his attorney before Judge Moore for the hearing before another district judge as contemplated by Article 1911a, V.A.C.S. Thereupon the applicant voluntarily withdrew his request for a hearing before another district judge to determine his guilt or innocence of contempt for acts committed before Judge Metcalfe on January 23, 1984.

Judge Moore then ordered the matter returned to Judge Ovard, Presiding Judge of the Administrative District, for transfer to Judge Metcalfe of the said Criminal District Court No. 2 for further proceedings pursuant to the original order of contempt.

On February 10, 1984, Judge Ovard returned the matter to Judge Metcalfe for further proceedings pursuant to the original order of contempt. Applicant then sought relief by filing this original application for writ of habeas corpus, and applicant has been released on his personal bond pending the disposition of this matter and until further order of this court. 3 Applicant argues that the order of contempt is void in that there is no evidence to support the respondent judge's conclusion that the question propounded to the prosecutrix was intentionally posed, and further there was no violation of the mandate of V.T.C.A., Penal Code, § 22.065.

He calls attention to the colloquy with the court following the asking of the question, that he understood the court's order and § 22.065 to refer to sexual conduct--that is promiscuity on the part of the prosecutrix, and not as to whether she had been the victim of a previous rape, the conduct of another individual. See, V.T.C.A., Penal Code, § 21.02 (1974) (now see § 22.011, effective Sept. 1, 1983).

V.T.C.A., Penal Code, § 22.065, provides:

"(a) Evidence of specific instances of the victim's sexual conduct, opinion evidence of the victim's sexual conduct, and reputation evidence of the victim's sexual conduct may be admitted under Sections 22.011 and 22.021 of this code only if, and only to the extent that, the judge finds that the evidence is material to a fact at issue in the case and that its inflammatory or prejudicial nature does not outweigh its probative value.

"(b) If the defendant proposes to ask any question concerning specific instances, opinion evidence, or reputation evidence of the victim's sexual conduct, either by direct examination or cross-examination of any witness, the defendant must inform the court out of the hearing of the jury prior to asking any such question. After this notice, the court shall conduct an in camera hearing, recorded by the court reporter, to determine whether the proposed evidence is admissible under Subsection (a) of this section. The court shall...

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16 cases
  • People v. Parks
    • United States
    • Michigan Supreme Court
    • 5 Junio 2009
    ...389 Pa.Super. 184, 188, 566 A.2d 1197 (1989) ("[A]ssaultive sexual activity is covered by the Rape Shield Law...."); Ex parte Rose, 704 S.W.2d 751, 756 (Tex.Crim.App., 1984) ("Reading the phrase or term `sexual conduct' in the context in which it is used in [Texas's rape shield law] and in ......
  • Grant v. Demskie
    • United States
    • U.S. District Court — Southern District of New York
    • 17 Noviembre 1999
    ...("assaultive sexual activity is covered by the Rape Shield Law"), aff'd, 536 Pa. 153, 638 A.2d 940 (1994); Ex parte Rose, 704 S.W.2d 751, 756 (Tex.Crim.App. 1984) (en banc) ("Reading the phrase or term `sexual conduct' in the context in which it is used in [the state rape shield law] and in......
  • Boyle v. State
    • United States
    • Texas Court of Criminal Appeals
    • 4 Octubre 1989
    ...Rules of Evidence: Civil and Criminal, § 412.1, p. 210. The statute was largely a procedural device. See Ex parte Rose, 704 S.W.2d 751, 760 (Tex.Cr.App.1984) (Clinton, J., concurring) (Section 22.065 essentially a procedural device to shield testifying victim of sexual abuse--a sort of stat......
  • Dale v. State
    • United States
    • Texas Court of Appeals
    • 18 Abril 2012
    ...of "sexual conduct" in former section 22.065 of the Texas Penal Code, the precursor to rule 412.6 See id. (citing Ex parte Rose, 704 S.W.2d 751, 756 (Tex. Crim. App. 1984) (citing Act of May 27, 1983, 68th Leg., R.S., ch. 977, § 4, 1983 Tex. Gen. Laws 5311 (amended 1983) (current version at......
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