In re Graves

• Decision Date: 21 March 2007
• Docket Number: No. 10-07-00015-CR.,10-07-00015-CR.
• Citation: 217 S.W.3d 744
• Parties: In re Anthony Charles GRAVES.
• Court: Texas Court of Appeals

217 S.W.3d 744

In re Anthony Charles GRAVES.

No. 10-07-00015-CR.

Court of Appeals of Texas, Waco.

March 21, 2007.

David Mullin, Mullin Hoard & Brown LLP, Amarillo, Lawrence M. Doss, Mullin, Hoard & Brown, L.L.P., Lubbock, TX, Nicole B. Casarez, University of St. Thomas, Houston, Jeff Blackburn, Lubbock, for appellant.

Patrick C. Batchelor, Corsicana, Julie A. Stone, Asst. Atty. General-State of Texas, Austin, for appellee.

Before Chief Justice GRAY, Justice VANCE, and Justice REYNA.

OPINION

FELIPE REYNA, Justice.

Anthony Charles Graves seeks a writ of mandamus compelling Respondent, the Honorable Reva L. Towslee-Corbett, sitting as judge of the 21st District Court of Burleson County,¹ to set aside a gag order Respondent entered during pretrial proceedings in Graves's retrial for capital murder. We will conditionally grant the requested relief.

Background

In 1994, a Brazoria County jury convicted Graves of capital murder and assessed the death penalty as punishment.² The Court of Criminal Appeals affirmed Graves's conviction in an unpublished opinion. See Graves v. State, No. 72,042, 950 S.W.2d 374 (Tex.Crim.App. Apr. 23, 1997) (not designated for publication). The Fifth Circuit ultimately vacated Graves's conviction because of a Brady violation. See Graves v. Dretke, 442 F.3d 334, 344-45 (5th Cir.), cert. denied, ___ U.S. ___, 127 S.Ct. 374, 166 L.Ed.2d 253 (2006). Graves now awaits retrial in Burleson County.

In a September 2006 hearing, Respondent advised the parties that she was contemplating the issuance of a gag order. She later mailed the parties a proposed gag order which was briefly taken up at an October 30 hearing. At this hearing, Graves's counsel advised Respondent that he had not received a copy of the proposed order. Nevertheless, counsel was apparently aware of the order because he had also filed written objections to it. Respondent advised that she was aware of counsel's objections but believed that order to be sufficiently tailored to satisfy any constitutional concerns.

One month later, Respondent signed a "Restrictive and Protective Order." The order recites that Respondent considered:

1. The prior proceeding in this cause of action, and other related actions of which the Court takes judicial notice;

2. The pre-trial publicity which has already occurred in this cause, which includes local and national newspaper coverage, of which the Court takes judicial notice;

3. The rulings and opinions which set out the inherent power of the Court to control its own proceedings, and to assure that a fair trial is provided for the State and the Defendant in this cause;

Whereupon the Court does find that it is necessary to enter this Restrictive Order to protect and provide for a fair and impartial trial in this cause of action.

Items 10 and 11 of the order are the provisions of primary concern here. They state:

10. Nothing except that which occurs in open court, adduced only in evidence and in argument, may be disseminated.

11. No party to this action, nor any attorney connected with this case as defense counsel or prosecutor, nor any other attorney, nor any judicial officer or employee, nor chief of police or sheriff, nor any agent, deputy or employee of such persons nor any grand juror, nor any witness having appeared before the Grand Jury or summoned by request or subpoena to testify in this trial, shall release or authorize the release for public dissemination of any matters relating to this case, except that which has been adduced into evidence and in argument in open court.

Said persons shall not express, outside of court, an opinion or make any comment for public dissemination as to the weight, value, or effect of any evidence as tending to establish guilt or innocence.

Said persons also shall not make any statements outside of court as to the nature, substance or effect of any testimony that has been given.

Said persons also shall not make any statements as to the [identity] of any prospective witness, or his or her probable testimony, or the effect thereof.

Said persons also shall not make any out-of-court statement as to the nature, source, or effect any purported evidence alleged to have been accumulated as [a] result of the investigation of this matter.

Said persons also shall not make any statements as to the content, nature, substance, or effect of any testimony which may be given in any proceeding related to this matter, except that a witness may discuss any matter with any attorney of record in this case.

This Order does not include any of the following:

1. Factual statements of the accused person's name, age, residence, occupation and family status.

2. The time and place of the arrest, the identity of the arresting officer's agency.

3. The nature and text of the charge as reflected in the indictments and public records.

4. Quotations from, or reference without comment to, public records of the Court in the case, and to other public records heretofore disseminated to the public.

5. The scheduling and result of any stage of the judicial proceeding held in open court in an open and public session.

6. A request for assistance in obtaining information.

7. Any information as to any person not in custody who is sought as a possible suspect or witness.

8. A request for assistance in obtaining evidence or the names of possible witnesses.

Graves contends in his mandamus petition that this order constitutes an unconstitutional prior restraint on his right of free speech under both the state and federal constitutions. After considering the petition, the Court sent notice to Respondent and to the prosecutor requesting a response. See Tex.R.App. P. 52.4. Respondent filed a brief, two-page response explaining in essence that she believes the order is "necessary and appropriate" to prevent "imminent and irreparable harm [which] could taint the potential jury pool." The prosecutor sent a letter to the Clerk of this Court advising that the prosecution would not be filing a response, that the prosecution has "no opposition" to the gag order, and that the prosecution believes the order to be constitutional.

Mandamus Principles

In a criminal proceeding, "[m]andamus is available only if the relator can demonstrate that: 1) he has no other adequate remedy at law; and 2) under the relevant law and facts, the respondent `clearly abused' his [or her] discretion or the act sought to be compelled is `purely ministerial.'" State ex rel. Rosenthal v. Poe, 98 S.W.3d 194, 215 (Tex.Crim.App. 2003) (orig.proceeding); accord DeLeon v. District Clerk of Lynn County, 187 S.W.3d 473, 474 (Tex.Crim.App.2006) (orig.proceeding) (per curiam).

Article I, Section 8

Graves first contends that the gag order violates Article I, section 8 of the Texas Constitution, which provides in pertinent part:

Every person shall be at liberty to speak, write or publish his opinions on any subject, being responsible for the abuse of that privilege; and no law shall ever be passed curtailing the liberty of speech or of the press.

TEX. CONST. art. I, § 8.

Provisions of the Texas Constitution which have analogues in the federal constitution are generally interpreted to have the same meaning. The Texas Constitution should be interpreted as providing broader protection than its federal counterpart only if such an interpretation has "firm support in state history or policy." Cobb v. State, 85 S.W.3d 258, 267-68 (Tex.Crim.App.2002); accord Ex parte Lewis, No. PD-0577-05, 2007 WL 57823 passim (Tex.Crim.App. Jan. 10, 2007). Thus, the Texas Constitution should be interpreted as providing rights not found in the federal constitution "only when unique aspects of Texas history, jurisprudence, or law support that separate interpretation." Cobb, 85 S.W.3d at 268.

The Supreme Court of Texas conducted just such an analysis with regard to article I, section 8 in Davenport v. Garcia, 834 S.W.2d 4 (Tex.1992) (orig.proceeding). The Court traced the unique history of freedom of speech and expression in Texas from the years before Texas independence up to the drafting of our current state constitution in 1876. Id. at 7-8. The Court also considered prior decisions of the Supreme Court of Texas and of the Court of Criminal Appeals suggesting that the Texas Constitution provides broader protection for speech than the First Amendment or holding that the provisions of article I, section 8 had been violated. Id. at 8-9. After conducting this analysis, the Court concluded that article I, section 8 "provides greater rights of free expression than its federal equivalent." Id. at 10.

The Court held that the gag order in that case was an unconstitutional prior restraint on the "free expression" guarantee of article I, section 8 and developed the following test to determine whether a prior restraint on expression violates this provision:

Since the dimensions of our constitutionally guaranteed liberties are continually evolving, today we build on our prior decisions by affirming that a prior restraint on expression is presumptively unconstitutional. With this concept in mind, we adopt the following test: a gag order in civil judicial proceedings will withstand constitutional scrutiny only where there are specific findings supported by evidence that (1) an imminent and irreparable harm to the judicial process will deprive litigants of a just resolution of their dispute, and (2) the judicial action represents the least restrictive means to prevent that harm.

Id.

The Court has consistently declined to expand its holding in Davenport. See, e.g., Tex. Dep't of Transp. v. Barber, 111 S.W.3d 86, 105-06 (Tex.2003); Operation Rescue-Nat'l v. Planned Parenthood of Houston & Se. Tex., Inc., 975 S.W.2d 546, 557-60 (Tex.1998). However, Davenport continues to be the applicable law in cases involving a prior restraint. See Marketshare Telecom, L.L.C. v. Ericsson, Inc., 198 S.W.3d 908, 916-18 (Tex.App.-Dallas 2006, no pet.); Tex. Mut. Ins. Co. v....