Gibson, In re, 08-90-00052-CR

• Decision Date: 14 November 1990
• Docket Number: No. 08-90-00052-CR,08-90-00052-CR
• Citation: 804 S.W.2d 920
• Court: Texas Court of Appeals
• Parties: In re the Honorable Michael R. GIBSON.

Page 920

804 S.W.2d 920

In re the Honorable Michael R. GIBSON.

No. 08-90-00052-CR.

Court of Appeals of Texas El Paso.

Nov. 14, 1990.

Charles Louis Roberts, El Paso, for Gibson.

Before OSBORN, C.J., and FULLER, WOODARD and KOEHLER, JJ., en banc.

OPINION

PER CURIAM.

This is an original proceeding in which an attorney, after response to a show cause notice, was found to be in contempt of court and assessed a fine of $300.00.

On December 20, 1989, following an earlier guilty plea, judgment and sentence were entered in State v. Armando Lopez Torres, cause no. 56432, on the docket of the 171st Judicial District Court of El Paso County. Punishment was assessed at thirty-five years' imprisonment on one count of murder, habitualized. The following day, December 21, the Hon. Michael R. Gibson, newly retained for purpose of appeal, filed a Motion in Arrest of Judgment, Motion for New Trial and Motion to Extend Time for Presentation and Hearing of Motion for New Trial. The additional time was sought to investigate and possibly develop a record of ineffective assistance on the part of trial counsel. Upon notice of appeal to this Court, the case was assigned cause number 08-90-00052-CR, Armando Torres v. State of Texas. On February 14, 1990, Mr. Gibson filed with this Court a Motion to Suspend the Rules of Appellate Procedure, referring to the time limit for motion for new trial proceedings. That motion was denied in a published opinion. Torres v. State, 804 S.W.2d 918 (Tex.App.--El Paso, 1990). The opinion erroneously relied upon the Tex.R.App.P. 2(b) prohibition of suspending provisions of the Code of Criminal Procedure, the former code provision for new trial having been repealed and incorporated in the Rules of Appellate Procedure. In any event, the denial was also founded upon the prohibition in Rule 2(a) of any suspension which would have the effect of extending or enlarging this Court's jurisdiction.

On April 18, 1990, the transcript was filed, and on May 9, the statement of facts was filed pursuant to an extension of time. On May 17, 1990, Mr. Gibson filed on Torres' behalf a Motion to Abate Appeal, seeking an opportunity to conduct an evidentiary hearing in the trial court as to ineffective assistance of trial counsel. That motion was also denied by published opinion. Torres v. State, 804 S.W.2d 918 (Tex.App.--El Paso, 1990). In that opinion, the Court suggested that even if such a procedure were available under Tex.R.App.P. 2 and 40(b)(2), a demonstration of good cause should include a bona fide point of error alleging ineffective assistance and identification, in good faith, of the specific deficiencies suspected.

On June 12, 1990, Mr. Gibson filed a Motion for Rehearing, drawing our attention to the incorrect reference to the Rule 2(b) prohibition. The Court issued a third opinion overruling the rehearing request, conceding the partial error in the prior opinions. Still with no suggestion of specific trial deficiencies before it, the Court went on to suggest another vehicle for relief, that being a habeas corpus proceeding in the trial court, which would permit developing a record and which would in all probability, by accelerated appeal, catch up with the direct appeal for consolidated submission. Torres v. State, 804 S.W.2d 918, 919 (Tex.App.--El Paso, 1990).

On June 29, a letter was sent to Mr. Gibson by the Clerk of the Court indicating the overdue status of his brief. On July 5, 1990, Mr. Gibson replied by letter that he could not submit a brief because he had "no record" available. On July 24, 1990, a letter was sent to Mr. Gibson, drafted by this Court's Staff Attorney, with judicial approval, and mailed under the signature of the Clerk of the Court. This letter again acknowledged Mr. Gibson's letter, but pointed out that there was in fact a record consisting of a transcript and statement of facts, albeit one not supporting his desired point of error of ineffective assistance of counsel. The need to resolve the appeal and counsel's need to file a brief were repeated. Having received no response to this letter, on August 10, 1990, the Court issued an order that the brief be filed not later than August 31, 1990. This order crossed in the mail with Mr. Gibson's letter of August 13 which was a response to the Court's prior letter of July 24.

Certain portions of Mr. Gibson's letter were considered contemptuous of the Court. The Court decided to conduct a hearing under the procedures applicable in situations of constructive contempt, contemplating a criminal contempt sanction under the provisions of Tex.Gov't Code Ann. § 21.002 (Vernon 1988 and Supp.1990). On September 17, 1990, the Court issued a show cause order, directing that Mr. Gibson appear on October 12 to show cause why he should not be held in contempt and punished for such contempt. The order included a reproduction of Mr. Gibson's August 13 letter, with the allegedly contemptuous portions underlined for purpose of notice.

The evidentiary hearing of October 12 was conducted by this Court en banc. Ex parte Werblud, 536 S.W.2d 542 (Tex.1976); Ex parte Duncan, 127 Tex. 507, 95 S.W.2d 675 (1936). Mr. Gibson appeared with counsel. Mr. Gibson was advised of his Fifth Amendment privilege against self-incrimination. The proceedings were recorded by a certified court reporter. At the outset, the Court took judicial notice of the entire file in Torres v. State, including all correspondence between the Court and Mr. Gibson. Counsel for Mr. Gibson was permitted to make an opening statement, call witnesses, introduce exhibits and present final argument. Two witnesses were called--the Staff Attorney of the Court and Mr. Gibson. The Court retired to deliberate and returned with a finding of criminal contempt. Counsel was then permitted to address the issue of punishment. After further deliberation, the Court assessed a fine of $300.00.

The Court entered express findings of fact and conclusions of law for the record:

(1) That the Hon. Michael R. Gibson is an officer of the Court and an experienced practitioner in criminal law;

(2) That Mr. Gibson wrote the letter of August 13, identified as Exhibit No. Three at the show cause hearing;

(3) That such letter was directed to the Clerk of the Eighth Court of Appeals;

(4) That such letter was filed on August 15, 1990 in Cause No. 08-90-00052-CR, styled Armando Lopez Torres v. The State of Texas;

(5) That the contemptuous language with reference to "sleazy criminal defense lawyers" was not language used in any opinion of the Court; and (6) That the language used in such letter is contemptuous of this Court and has impeded, obstructed and disrupted this Court's function, and has resulted in an obstruction of the administration of justice in this Court.

The Court's findings and conclusions were based upon a standard of beyond a reasonable doubt. The Court is well aware that personal insult alone is not a sufficient basis for either direct or constructive contempt. Ex parte O'Fiel, 93 Tex.Crim. 214, 246 S.W. 664 (1923); Ex parte Ireland, 38 Tex. 344 (1873). Contempt is no remedy for offense to the personal sensibilities of judicial officers. In re Little, 404 U.S. 553, 92 S.Ct. 659, 30 L.Ed.2d 708 (1972). A thin skin is no asset for such office. W. Kilgarlin, Contempt of Court in Texas--What You Shouldn't Say to the Judge, 38 Baylor L.Rev. 291, 328-329 (1986). Nonetheless, while shrugging off the slings and arrows directed at his person, a judge is obligated to preserve and protect his office and his function in the process of administering justice from "the proud man's calumny." Consequently, the contempt power may only, indeed must, be exercised when the contemptuous conduct, written word, spoken word or deed, interrupts or obstructs the function of the Court. Compare Ex parte Soape, 171 Tex.Crim. 251, 347 S.W.2d 621 (1961).

The Court's decision has also been reached with due regard for the additional caution which must be applied where the contempt takes the form of the written or spoken word of an attorney. On the one hand, the obstructive consequences of such conduct are less readily apparent than in the case of a physical disturbance of the Court's function. In re McConnell, 370 U.S. 230, 236, 82 S.Ct. 1288, 1292, 8 L.Ed.2d 434, 438 (1962). In addition, it is the attorney's function and duty to speak and write as an advocate for his client, and contempt power must be exercised with extreme caution so as not to abridge rights of free speech and representation by counsel. With these precepts in mind, the present decision was cautiously and painfully reached.

In essence, Mr. Gibson's letter accused the Court of a bias against the criminal defense bar and himself in particular. In itself, such a charge would of course not be contemptuous. Otherwise, an attorney would be unable to properly seek recusal on such a basis. Compare Holt v. Virginia, 381 U.S. 131, 85 S.Ct. 1375, 14 L.Ed.2d 290 (1965). Mr. Gibson's remarks, however, go beyond a mere charge of bias. His letter asserted that such bias was not merely reflected in conscious or unconscious exercise of discretion by this Court but has been manifested by the Court's failure to have "followed the plain intent of the Appellate Rules ...." It charged that the Court preferred instead "seeking ways to publicly insult criminal defense lawyers ...." The letter makes reference to two of the published opinions on Mr. Gibson's motions and attributed to those opinions "a number of snide references to sleazy criminal defense lawyers ...." A plain reading of those opinions, individually or together, reflects no such references, either express or implicit. These assertions in Mr. Gibson's letter were not merely accusatory of bias, but were insulting and false.

The fact that Mr. Gibson has persisted in refusing to accept the Court's position with regard to the state of the record, need for a brief and suggested alternative vehicles to address his desired...