In re Warrick
| Decision Date | 30 May 2014 |
| Docket Number | No. 08-13-00255-CR,08-13-00255-CR |
| Parties | IN RE: MELISSA WARRICK, IN HER OFFICIAL CAPACITY AS AN ASSISTANT DISTRICT ATTORNEY FOR THE STATE OF TEXAS, Relator. |
| Court | Texas Court of Appeals |
AN ORIGINAL PROCEEDING
IN MANDAMUS
Melissa Warrick, Relator, has filed a petition for writ of mandamus against the Honorable Marcos Lizarraga, Judge of the 168th District Court of El Paso County, Texas (hereinafter Respondent) requesting that we order Respondent to set aside all orders initiating contempt proceedings against Relator without providing notice of the charges and affording a reasonable amount of time to prepare for a hearing.1 We conditionally grant the writ of mandamus.
FACTUAL BACKGROUND
This mandamus proceeding arises out of the criminal prosecution of the real party in interest, Roberto Flores, who is charged by indictment with family violence assault.2 Prior to indictment, Flores was placed on a $10,000 personal recognizance bond.
Events of July 10 - 12, 2013
Following indictment, a capias was issued and Flores was scheduled for arraignment on July 10, 2013 at 7:30 a.m. as well as a hearing on his motion to withdraw the capias. Flores appeared with his attorney, Ruben Nunez, prior to 7:30 and executed a waiver of arraignment. Nunez subsequently left the 168th District Court, but he returned to the courtroom at 11:30 a.m. for a hearing on the motion to withdraw the capias. Assistant District Attorneys Melissa Warrick and Lillian Blancas were assigned to the 168th District Court at the time and they appeared on behalf of the State at that hearing. Flores requested that Respondent continue him on the same personal recognizance bond and not require him to be booked through the jail. Respondent indicated that he understood the State was taking the position that it was necessary for Flores to be booked on the charged offense because it would create problems with respect to establishing his identity in the future if he was not booked. Respondent did not rule on Flores' motion and instead continued the hearing to 3:00 p.m. that afternoon. Respondent told the parties that Flores would be in the constructive custody of the bailiff in the meantime under whatever conditions the bailiff decided were appropriate, but Flores would not be allowed to leave the courthouse. Respondent instructed the prosecutors to provide him with authority regarding the extent of his discretion to grant the motion and permit Flores to not be booked. He also asked them to let him and Nunez know if they were "inclined to call another peace officer to interrupt that [sic] custody . . . ." Respondent then adjourned the proceedings.
At 2:00 p.m. that same day, Respondent requested the attorneys to return to the courtroom and he called the Flores case for a hearing to address what he characterized as "dirty pool." Warrick and Blancas appeared on behalf of the State and Darnold was present in the courtroom. The bailiff, identified on the record as Mr. Quinn, stated that Deputy Robinson hadjust informed him that one of the Assistant District Attorneys had gone to the Sheriff's Office and demanded that Flores be arrested. Mr. Quinn reported the conversation with Deputy Robinson to Respondent. Respondent then asked the Assistant District Attorneys if they were going to let him know they were attempting to have Flores arrested. Blancas responded that she had talked to the bailiff earlier and let him know what they were trying to do and the bailiff subsequently went into Respondent's office. Blancas spoke with Respondent in the hallway and Respondent acknowledged he was aware that a peace officer who has an arrest warrant or capias has a duty to be diligent in executing it. Blancas returned to Deputy Robinson's office and spoke to him again about the situation. Deputy Robinson told them that he had spoken with the bailiff and had been informed that Flores would be placed under arrest at the conclusion of the afternoon hearing so they did not need to worry about it anymore.
Respondent asked Blancas if she thought it was okay to take action during the recess to have Flores arrested given the instructions Respondent had stated at the conclusion of the earlier hearing. She replied that she believed it was proper because there was an active capias. Blancas cited Article 23.13 of the Code of Criminal Procedure3 in support of her position, but Respondent stopped her from further discussing the merits of the issue raised by Flores' motion to withdraw the capias. Blancas added that Respondent had instructed her to let him know if they intended to have Flores arrested, and she had notified the bailiff that they had talked to the Sheriff's Office about having Flores arrested. She apologized for not contacting Nunez immediately but explained that she did not have his cell phone number.
The parties subsequently argued the merits of Appellant's motion to withdraw the capias and whether it was necessary for Flores to be arrested and booked. When Respondent asked theState to explain its position with regard to the arrest of Flores, Blancas argued that because a capias had been issued for Flores, he should be delivered immediately to the sheriff pursuant to Article 23.13. Blancas asserted that if Flores was not arrested and booked through the jail, he would not be fingerprinted or photographed and identity would become an issue in the case. After undertaking a review of the police report and a non-prosecution statement filed by the complainant, Respondent granted the motion to withdraw the capias and set Flores' bond at a $10,000 personal recognizance bond. Flores was not arrested or booked.
Near the conclusion of the hearing, Respondent addressed Warrick and Blancas. He stated that he had told them he expected to be told if they decided to have Flores arrested before the 3:00 p.m. hearing, but they had failed to do that and he would not trust them in the future. Assistant District Attorney Tom Darnold4 then asked to address Respondent. Darnold explained that he found the circumstances regarding Flores' custody to be both confusing and unusual, so he had suggested to Blancas and Warrick that they ask a deputy sheriff to talk to the bailiff to determine the exact nature of the situation. Respondent explained that he purposely did not order the Assistant District Attorneys to not have Flores arrested because he knew it would result in a mandamus being filed against him. Respondent also expressed his belief that the District Attorney's Office was trying to exert all of its power to "teach [him] a lesson".
The following morning, July 11, 2013, Warrick and Blancas were present in the courtroom when Respondent called the Flores case. Respondent stated:
Respondent called the case again a short time later and Assistant District Attorney Joe Monsivais appeared on behalf of Warrick, Blancas, and Darnold. After Respondent confirmed that he intended to hold the three Assistant District Attorneys in contempt, Monsivais advised the court that Warrick, Blancas, and Darnold were asserting their Fifth Amendment rights. Respondent stated that he had already met with someone he identified as Ms. Tarango and individuals from the Sheriff's Office, and he had requested the presence of Chuck Molinar, Officer Pitblado, and Officer Chavez in the courtroom at 2:30 p.m. Respondent advised the parties that he had not been able to contact Flores' attorney so he had scheduled a contempt hearing for 2:30 p.m. Monsivais objected on the ground that Warrick, Blancas, and Darnold had not been given notice of the allegations against them, they had not been served with a show-cause order, and he asserted that Respondent lacked authority to summarily hold them in contempt without notice. Respondent determined that notice was not required because it was direct contempt, while Monsivais argued that the actions the court had an issue with had occurred outside of the presence of the court so it could not be direct contempt. Monsivais also argued that officers of the court were entitled to notice of the charges even if it was direct contempt. The court re-set the contempt hearing for 2:00 p.m. the following day, July 12, 2013.
Warrick, Blancas, and Darnold filed a written objection to the lack of notice of the specific allegations against each of them and they requested a separate hearing for each individual. They also objected to a lack of notice of the hearing. Respondent called the Flores case for announcements at the scheduled hearing time on July 12, 2013. Michael Wyatt, an Assistant County Attorney, attended the hearing and appeared on behalf of Warrick, Blancas, and Darnold. Joe Monsivais and Ballard Shapleigh appeared on behalf of the State and Ruben Nunez appeared on behalf of Roberto Flores. Monsivais invoked "the rule" and advised Respondent that the State had subpoenaed Respondent's bailiff and court coordinator. He...
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