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No. AP-69,745-01

EX PARTE IN THE COURT

OF CRIMINAL APPEALS

ADAM REPOSA OF TEXAS

MOTION FOR LEAVE TO FILE ORIGINAL APPLICATION FOR WRIT OF HABEAS CORPUS

AND ORIGINAL APPLICATION FOR WRIT OF HABEAS CORPUS

TO THE HONORABLE JUDGES OF SAID COURT:

COMES NOW APPLICANT, ADAM REPOSA, by and through Karyl

Anderson Krug and Todd S. Dudley, his undersigned attorneys of record, and

pursuant to Article V, Section 5 of the Constitution of the State of Texas, presents this

Motion for Leave to File Original Application for Writ of Habeas Corpus and

Original Application for Writ of Habeas Corpus, and would respectfully show this

Honorable Court the following:

I.

BASIC FACTS AND PROCEDURAL HISTORY

Applicant is an attorney licensed to practice law in the State of Texas.

Applicant’s State Bar No. is 24040163.

On March 11, 2008, Applicant was held in direct contempt in the County Court

Applicant explained this gesture as a metaphor for “no big deal.” 1 RR 169. In a similar1

vein, United States Supreme Court Justice Antonin Scalia, on the steps of a church, gave an“Italian hand gesture”widely understood to be an obscene gesture, which a Boston Heraldreporter said was accompanied by an obscene Italian epithet. Justice Scalia, however, deniedmaking the obscene comment and explained that the gesture was not intended as obscene butmerely dismissive. See IRA R. ROBBINS, “DIGITUS IMPUDICUS: THE MIDDLE FINGER AND THE

LAW,” U.C. Davis Law Review No. 41, 2008, at 1419. There is no allegation of an obscenecomment in the instant case.

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at Law Number 6 for making a “masturbatory hand gesture” not directed at Judge Jan1

Breland, but at prosecutor Bill Swaim, who sought to complain that Applicant was

communicating with his client while Mr. Swaim was reading a plea bargain offer,

previously conveyed to the client by his attorney, into the record. 1 Reporter’s

Record (“RR”) at Movant’s Exhibit (“MX”) 3; 1 RR 84. The proceeding was a brief,

routine preliminary bench proceeding in a largely empty courtroom with no jury

present, recorded in a mere seven pages of transcript. 1 RR MX 2 at 4-10. No

warning was given prior to the finding of direct contempt. 1 RR at MX 2. The

moment Applicant was instructed by Judge Breland to leave the courtroom, he did so.

1 RR MX 3 at . Thereafter, Judge Breland sought to deny Applicant a personal bond

with the intention that Applicant spend the night in jail. 1 RR MX 1 at “Judgment of

Criminal Contempt of Court” (handwritten addendum); 1 RR 103; Respondent’s

Exhibit (“RX”) 2. No particular sentence was assessed. 1 RR 92. Judge Charles F.

Baird signed a bond releasing Applicant as required by law.

The de novo hearing required by Texas Government Code 22.021(d) was held

Mr. Leavitt’s testimony on this point is at odds with the testimony of an actual witness,2

attorney Benjamin Blackburn, who testified that it did not take a lot to “tick off” Judge Breland,and that he had “run-ins” with her “[o]n a nearly daily basis.” 1 RR 137.

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on April 15, 2008. Retired State District Court Judge Paul Davis was assigned to

hear the cause.

Applicant, who complained at the beginning of the hearing that the Travis

County Attorney was actually the movant in this case, as reflected in the judgment of

contempt, and that Mr. Randy Leavitt is not a disinterested prosecutor and, in fact,

has a personal bias against Applicant, sought to recuse the Travis County Attorney’s

Office, without success. 1 RR 11-16. Mr. Leavitt argued against the recusal, noting

that “A prosecutor’s personal belief or attitude about a defendant or anybody else I

don’t think has any bearing in the case.” 1 RR 19. Yet Mr. Leavitt then essentially

testified against the Applicant and for Judge Breland during the course of this

prosecution. For example, at punishment Mr. Leavitt testified that Judge Jan Breland,

who he said he had known for thirty years, “is one of the sweetest women I’ve known

in my life and has the most patience of anybody I’ve ever known....She hates being

here today more than anybody in this courtroom and, for that, this gentleman needs

to be punished.” 2 RR 13. 2

Applicant was also unsuccessful at the commencement of the de novo

proceeding in convincing Judge Davis that criminal procedure should be implemented

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where practicable during the course of the hearing. Judge Davis’s initial comment

about the procedure to be used was, “Whether this is a civil contempt proceeding or

a criminal contempt proceeding, I don’t think it matters much in regard to the

procedure involved in it.” 1 RR 18. Thereafter, the hearing consisted largely of

testimony about extraneous conduct and Applicant’s personal relationship with Judge

Breland. The parties were not allowed to put on any evidence at all at punishment.

1 RR 211. Inconsistently, the State argued at punishment that the Penal Code and

the Code of Criminal Procedure should be followed in assessing punishment. 2 RR

7, 9.

Another thing that occurred at the beginning of the de novo proceeding is that

Judge Davis struck the charging instrument, and elected to proceed instead on the

judgment of contempt in lieu of the charging instrument. 1 RR 38-39. What Judge

Davis decided was:

And, basically, what I’m ruling is that the Court cannot find that it wascontemptuous of Mr. Reposa to interfere with the Court’s colloquy withthe defendant after being admonished.

Basically, we have a contempt finding by Judge Breland that Mr.Reposa made a simulated masturbatory gesture with his hand whilemaking eye contact with the Court in response to an objection by theState to his interference with the Court’s plea bargain inquiry. That’sthe contempt allegation. And that’s what we’ll be proceeding on.

1 RR 39. When Applicant sought to clarify what the charge was, Judge Davis

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responded, “I don’t know what you’re asking me, Mr. Garcia. I feel like this is a trap

here.” 1 RR 40. Judge Davis then stated that the entire judgment of contempt would

serve to replace the charging instrument.

Judge Breland testified that she did not believe that the “masturbatory gesture”

was directed at her. 1 RR 84.

Applicant was found guilty of contempt at the end of this hearing. 1 RR 210.

The next day, April 16, 2008, Applicant was sentenced to 90 days in jail and ordered

taken into custody immediately. 2 RR 30.

II.

GROUNDS FOR RELIEF

Applicant asserts that he is being illegally restrained of his liberty on the

following grounds:

1. APPLICANT WAS DENIED DUE PROCESS AND DUE COURSE OFLAW BECAUSE HE WAS DENIED UNAMBIGUOUS NOTICEPRIOR TO TRIAL OF WHAT THE STATE WOULD HAVE TOSHOW TO PROVE HIM GUILTY OF CONTEMPT;

2. THE EVIDENCE WAS INSUFFICIENT TO SUPPORTAPPLICANT’S CONVICTION UNDER WHAT WAS MOST LIKELYTHE CHARGING INSTRUMENT IN THIS CASE;

3. APPLICANT WAS DENIED DUE PROCESS AND DUE COURSE OFLAW, IN VIOLATION OF HIS STATE AND FEDERALCONSTITUTIONAL RIGHTS, WHEN JUDGE DAVIS DECLINEDTO FOLLOW CRIMINAL PROCEDURE IN ASCERTAINING

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APPLICANT’S GUILT;

4. APPLICANT WAS DENIED DUE PROCESS AND DUE COURSE OFLAW, IN VIOLATION OF HIS STATE AND FEDERALCONSTITUTIONAL RIGHTS, WHEN JUDGE DAVIS DECLINEDTO RECUSE THE TRAVIS COUNTY ATTORNEY’S OFFICE;

5. APPLICANT’S EIGHTH AMENDMENT RIGHTS WERE VIOLATEDWHEN HE RECEIVED AN EXCESSIVE SENTENCE RELATIVE TOWHAT OTHER ATTORNEY/CONTEMNORS HAVE RECEIVED INOTHER CASES.

III.

BRIEF IN SUPPORT

This Court has jurisdiction to consider an original application for writ of

habeas corpus arising from a trial court's contempt order. Article 5, Section 5(c), Tex.

Const.; Ex parte Thompson, —S.W.3d—, 2008 WL 696476, slip op. 2

(Tex.Crim.App. 2008). A criminal contempt order is punitive and unconditional in

nature and is an exertion of the court's inherent power to punish the contemnor for a

completed act that affronted the court's dignity and authority. Ex parte Johns, 807

S.W.2d 768, 771 (Tex.App.-Dallas 1991, orig. proceeding). Contempt proceedings

are quasi-criminal in nature, and they should conform as nearly as practicable to those

in criminal cases. Ex parte Sanchez, 703 S.W.2d 955, 957 (Tex.1986). There are two

types of criminal contempt: direct and constructive (or indirect). Direct contempt

involves disobedience or disrespect to the court's authority and that is committed in

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the presence of the court, while constructive contempt occurs outside of the court's

presence. In re Johnson, 996 S.W.2d 430, 433 (Tex.App.-Beaumont 1999, no pet.).

Constructive contempt refers to acts that require testimony or the production of

evidence to establish their existence. Ex parte Daniels, 722 S.W.2d 707, 709

(Tex.Crim.App.1987). Constructive contempt is commonly an act that constitutes a

failure to comply with a valid court order. See, e.g., Ex parte Arnold, 503 S.W.2d 529,

533-34 (Tex.Crim.App.1974); Johnson, 996 S.W.2d at 433.

Notice in the due process context of criminal contempt proceedings requires

timely notice by personal service of the show cause hearing and full and unambiguous

notice of the contempt accusations. See, e.g., Ex parte Adell, 769 S.W.2d 521, 522

(Tex.1989); Ex parte Vetterick, 744 S.W.2d 598, 599 (Tex.1988); In re Rowe, 113

S.W.3d 749, 752 (Tex.App.-Austin 2003, no pet.). The notice must state when, how,

and by what means the person has been guilty of contempt. Vetterick, 744 S.W.2d at

599. A contempt order rendered without such adequate notification is void. Adell,

769 S.W.2d at 522.

The validity of a contempt judgment can be attacked only by habeas corpus.

Collins v. Kegans, 802 S.W.2d 702, 705 (Tex.Crim.App. 1991). A habeas corpus

petition is a collateral attack on a judgment, the purpose of which is not to determine

the final guilt or innocence of the relator but to ascertain whether the Applicant has

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been confined unlawfully. Ex parte Gordon, 584 S.W.2d 686, 688 (Tex. 1979). An

order is void if it deprives the applicant of liberty without due process of law. Ex

parte Swate, 922 S.W.2d 122, 124 (Tex. 1996).

IV.

GROUND FOR RELIEF ONE: APPLICANT 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.

The facts are as discussed in Section I, supra. At the commencement of the

hearing, Applicant thought he was going to trial on the following allegation:

On March 11, 2008, Adam Reposa, while appearing as counselfor La Charles Williams, in the presence of Judge Jan Breland, presidingas judge of Travis County Court at Law Number Six, made a simulatedmasturbatory gesture with his hand while making eye contact with JudgeBreland in response to an objection by the State to his interference withJudge Jan Breland’s plea bargain inquiry. The gesture was made afterthe Court admonished Mr. Reposa several times to quit interfering withthe Court’s colloquy with the Defendant.

1 RR MX 1 at “Official Notice of Basis of Accusation of Contempt of Court.”

Applicant sought to make an oral motion to quash the charging instrument because

there was no show cause order and because it was at odds with the “Judgment of

Criminal Contempt of Court,” which alleged the following:

On March 11, 2008, the State moved the Court to hold Adam Reposa,

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counsel for Defendant, in Contempt of Court for his intentional andcontumacious conduct during the Court’s review of the plea bargainoffer to his client before jury trial. Defense counsel Reposa made asimulated masturbatory gesture with his hand while making eye contactwith the Court in response to an objection by the State to hisinterference with the Court’s plea bargain inquiry. The Courtacknowledged on the record witnessing the gesture. Richard Gentry, asState’s attorney during the proceeding, also witnessed the gesture andacknowledged so on the record. Subsequently, the State moved thatdefense counsel Adam Reposa be held in direct contempt for making anobscene gesture in the presence of and at the Court.

1 RR MX 1 at “Judgment of Criminal Contempt of Court.”

To make matters even more confusing, Judge Davis elected to strike the

charging instrument, substitute the judgment for a charging instrument, and then

seemed to narrow the newly designated charging instrument to a single allegation,

“Basically, we have a contempt finding by Judge Breland that Mr. 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.” 1 RR 39. When counsel for Applicant sought to clarify what the

allegation was, Judge Davis characterized that effort as a “trap” and then stated that

the entire judgment of contempt was the new charging instrument.

In summary, it is not clear from this record what it was the State had to show

to prove Applicant guilty of contempt, whether it was the gesture in isolation, a

gesture made toward the prosecution, a gesture made toward the judge, the purpose

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or effect of the gesture, or any or all of the above in some combination. As it

happened, the State tried to put on evidence of everything Applicant had ever done

or was suspected of doing that might be considered inappropriate or unprofessional

during the course of his entire professional career, including things that may have

happened before Applicant ever started law school. The overall effect of this

situation was not a “trap” for the judge, but for the Applicant, because he was denied

the unambiguous notice he was entitled to under Adell, Vetterick, and Rowe.

Applicant was denied due process and due course of law in that he was not given

clear and unambiguous notice of what the State would have to prove for Applicant

to be found guilty of contempt.

GROUND FOR RELIEF TWO: THE EVIDENCE WAS INSUFFICIENT TO

SUPPORT APPLICANT’S CONVICTION UNDER WHAT WAS MOST LIKELY

THE CHARGING INSTRUMENT IN THIS CASE.

One of the allegations in what may have been the final, approved version of the

charging instrument in this case, was that Applicant made “an obscene gesture in the

presence of and at the Court.” 1 RR MX 1 at “Judgment of Criminal Contempt of

Court.” While Judge Breland signed this judgment, her uncontradicted testimony was

that she did not believe the gesture was made at her, but only in her presence. 1 RR

84; 86. This is supported by other testimony demonstrating the pre-existing acrimony

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between prosecutor Bill Swaim and Applicant, where Mr. Swaim, also the movant-in-

fact in this case, testified that he refused to shake Applicant’s hand after losing a trial

to him. 1 RR 129. As measured against what is most likely the final charging

instrument in this case, the evidence is insufficient to support the judgment of

contempt. The State was required to prove every element of the offense charged

beyond a reasonable doubt. Hood v. United States, 326 F.2d 33, 34 (5th Cir.1964).

One of the elements alleged in the charging instrument was that the “obscene gesture”

was made “at” the judge, a contention for which there is no evidentiary support in this

record.

Alternatively, it is not clear that the gesture alone was sufficient to establish

criminal contempt. The gesture, which is the equivalent of speech, should be

regarded like other offensive comment. Offensive comments, even those spoken in

open court, are not contumacious unless they are disruptive or boisterous. In re Bell,

894 S.W.2d 119, 127 (Tex.Spec.Ct.Rev. 1995).

The proceeding at issue here was not a jury trial – it was an effort by Judge

Breland, who was already irritated with Applicant, to ascertain if Mr. Williams

wanted to go against his counsel’s advice and plead guilty rather than go to trial.

Applicant was vigorously encouraging his client not to plead guilty merely because

that was the only way to get out of jail that day, rather than because he was actually

As attorney Ben Blackburn noted, the cost of pleading guilty just to get out of jail3

included ancillary consequences such as license suspension and future enhancement. 1 RR 151.

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guilty. 1 RR 76. As Judge Breland testified, it is usually the case that “things are just

easier to plead and get out of jail than to go through having a trial.” 1 RR 100. In this

particular situation, the State had already had two continuances. 1 RR 152.

Applicant did not want his client, who had already spent the maximum amount of

time in jail and who had nothing to lose by going to trial, to plead guilty. 1 RR 160-3

62. Applicant “lost his cool” when prosecutor Bill Swaim, with whom Applicant

“had a little history,” objected on the record to Applicant whispering in his client’s

ear, which Applicant did not believe was a valid legal objection: “[T]here’s a lot of

prosecutors out there that I really respect and I will probably say Bill Swaim isn’t one

of them.” 1 RR 164-65, 168-69, 172. Clearly, given Mr. Swaim’s testimony that he

declined to shake Applicant’s hand after being defeated at a previous trial, the feeling

was mutual.

This Court has set the parameters for establishing when an attorney’s actions

rise to the level of criminal contempt. In Ex parte Pink, 746 S.W.2d 758

(Tex.Crim.App. 1988), this Court analyzed whether an attorney's conduct was

contemptuous by determining if it “hindered the forward progress of the trial” or

“obstructed the administration of justice.” Ex parte Gibson, 811 S.W.2d 594, 596

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(Tex.Crim.App. 1991). As the United States Supreme Court noted, courts “must be

on guard against confusing offenses to their sensibilities with obstruction to the

administration of justice.” Brown v. United States, 356 U.S. 148 (1958). In Ex parte

Pink, when it was brought to the trial judge’s attention that both counsel were using

“the finger,” the trial judge simply admonished both counsel to behave like

gentlemen. Id. at 759 fn. 2.

Here, there was questionable behavior on the part of both counsel, and

Applicant appeared to have a somewhat unusual relationship with Judge Breland. See

fn. 4 infra. It is not uncommon for attorneys to whisper in their client’s ears during

bench proceedings, or shake their heads as Judge Breland testified, and Mr. Swaim’s

comment on the record to that effect did not amount to a legal objection. 1 RR 84.

Applicant, for his part, reacted inappropriately, and admitted that his response was

inappropriate for a courtroom. 1 RR 185. However, it was not Applicant’s intent to

hinder the forward progress of a trial, because clearly he wanted Mr. Williams’s case

to go to trial that day. And Applicant was not trying to interfere with the

administration of justice but, rather, a potential injustice: Applicant did not want to

plead out a client who told him that he was factually not guilty. 1 RR 193, 195-98.

As was noted above, the entire exchange took seven pages and Applicant acquiesced

the minute Judge Breland called him down.

Judge Davis also disputed whether Applicant was entitled to a bond when requested4

during Applicant’s cross-examination of Judge Breland on this issue. 1 RR 108.

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For all the foregoing reasons, the evidence is insufficient to support the

judgment of contempt, which should be vacated and an order of acquittal entered.

GROUND FOR RELIEF NUMBER THREE: APPLICANT WAS DENIED DUE

PROCESS AND DUE COURSE OF LAW, IN VIOLATION OF HIS STATE AND

FEDERAL CONSTITUTIONAL RIGHTS, WHEN JUDGE DAVIS DECLINED TO

FOLLOW CRIMINAL PROCEDURE IN ASCERTAINING APPLICANT’S GUILT.

Judge Davis stated at the beginning of the hearing, “Whether this is a civil

contempt proceeding or a criminal contempt proceeding, I don’t think it matters much

in regard to the procedure involved in it.” 1 RR 18. Applicant argued that criminal4

procedure should be implemented where practicable during the course of the hearing,

arguing that he was entitled to a bifurcated proceeding and that the guilt phase should

not include what is typically considered punishment evidence. Thereafter, the

hearing consisted largely of evidence that would normally be admissible at the

punishment phase of a trial under Article 37.03 Section 3 of the Code of Criminal

Procedure. The parties were not allowed to put on any evidence at punishment after

Applicant was found guilty. 1 RR 211.

Applicant first objected to the mention of extraneous conduct evidence during

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the State’s opening statement, when the State announced that Applicant was not

entitled to a bifurcated proceeding. 1 RR 46. Applicant’s objection was overruled.

Applicant objected specifically to having a non-bifurcated proceeding when the State

almost immediately began eliciting testimony about extraneous conduct that Judge

Davis deemed relevant to punishment. 1 RR 53. Applicant argued that punishment

evidence was irrelevant to the issue of guilt and that the Code of Criminal Procedure

should be followed on this matter. All the State had to show to establish contempt

was not the purpose or intent to act, but that the act itself amounted to contempt of

court. Ex parte Bailey, 142 Tex.Cr.R. 582, 155 S.W.2d 927 (1941); Ex parte Dowdle,

165 Tex.Cr.R. 536, 309 S.W.2d 458 (1958); Ex parte Pink, 746 S.W.2d 758, 761

(Tex.Crim.App. 1988). That objection was also overruled. 1 RR 54. Mr. Leavitt

then argued that the extraneous offense evidence was relevant because

one of the things we’ve got to look at when a judge holds someone incontempt, their sensibility, they’ve got to have a thick skin. Not just anyconduct would be so offensive that they hold somebody in contempt. Ithink it’s relevant also to her dealings with Mr. Reposa over the lastseveral years and her decision to hold him in contempt.

1 RR 54-55. In other words, the State argued that extraneous conduct evidence was

necessary to show why this particular judge would be “offended” to this extent.

Applicant was then granted a running objection to extraneous offense testimony by

the judge. 1 RR 55. Thereafter, Judge Breland testified about Applicant’s extraneous

During the course of Judge Breland’s testimony, in which she frequently referred to5

Applicant by his given name, she described a relationship that included personal confidences byApplicant about growing up with a single mother and Judge Breland’s“motherly” advice thatApplicant should conform his behavior to what is expected of the criminal justice “family” herein Travis County. 1 RR 57-58. An exchange about “kolaches” between Applicant and JudgeBreland is also part of this record. Respondent’s Exhibit (“RX”) 1. The State’s overall strategyappeared to be one of portraying Judge Breland as an endlessly patient mother who was onlytrying to help a thankless and incorrigible child, as opposed to a judge who disciplined an unrulylawyer but then intended that he be kept in jail illegally: “She hates being here today more thananybody in this courtroom and, for that, this gentleman needs to be punished." 2 RR 13. TheState characterized Applicant as “childish,” referred to “modern day” parenting techniques, andsuggested that Applicant needed a “whipping” as opposed to a “time-out.” 2 RR 12.

The State’s excuse for this entire line of questioning was to prove that Applicant used the6

nickname “Bulletproof” and to tie the Whoopsy! material to Applicant. 1 RR 142. This entireline of questioning was irrelevant to the contempt, but it later became clear that this line ofquestioning was relevant to the State’s efforts to complain to the State Bar about Mr. Reposa. See Appendix B, correspondence from the State Bar Advertising Section dated the day after thisline of questioning took place.

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conduct, including details of “personal relationships I’ve had with him.” 1 RR 56.5

Perhaps most egregious was the introduction of the “Whoopsy!” material. 1 RR

MX 5 and 7. Whoopsy! is a newspaper-type publication that published an apparently

satirical “ad” for an attorney identified only as “Bulletproof, the DWI Stud.” The

illustration included a picture of Applicant’s face at the age of about ten pasted onto

the body of a man engaged in a sexual act with a woman. There was no name, phone

number, or address on the satirical “ad.” Applicant testified that he did not create this

material or cause it to be published. 1 RR 185, 188. Attorney Blackburn also6

testified that he did not consider the material an “advertisement.” 1 RR 143.

The evidence at this hearing went far afield of the acts that were charged as

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contempt in this case, on the theory that the State was entitled to put on as much

extraneous act punishment evidence as it wanted to, even if it had nothing whatsoever

to do with the case in question, prior to the court’s finding of guilt. Applicant can

find no case in any jurisdiction where anything even remotely like this has been done

before. Even Judge Davis recognized that “most of that hearing was not about [the

allegedly contemptuous] conduct.” 2 RR 26. What Judge Davis failed to recognize,

however, was the extreme irregularity of the entire proceeding. It is also clear from

Judge Davis’s summation that the 90-day punishment assessed was intended to

address, not just the act of contempt alleged, but all of the other conduct the State

elicited testimony about, which was not charged conduct:

And I heard some evidence yesterday about other issues and otherproblems and concerns, and you talked about some mental health thingsand other things like that. And so part of me says, “Well, let’s try to getto the bottom of it and . . . you know . . . there’s enough of this counselorpart in me and enough concern for the reality that you are a lawyer whois actively practicing in our courts and do, therefore, how so I, as therepresentative of the court process, work to make sure that you get it andto get to whatever your underlying problems are that might cause yourunderlying problems or might cause this to occur.

2 RR 28. Judge Davis considered Applicant’s mental health history despite having

previously sustained an objection to admission of evidence of Applicant’s past mental

health issues. 1 RR 177-78. Judge Davis also appeared to suggest that Applicant was

being punished for putting on a defense by placing his action in context, when his

Judge Davis’s comment was, “I wish I could have known Mr. Pink” and “When I teach7

on direct contempt, I talk about Pink and what a character he must have been to . . . to generate tothe level of litigation about him. When you talk to Houston judges, apparently, he was just anamazing character . . . .” 1 RR 35.

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decision to testify at all was made after the State made every effort to vilify him. 2

RR 27. “You admitted what you did could well be perceived by a court to be

contemptuous. . . . It’s the ‘Yeah but’ that concerns me.”

Even the infamous Walter Pink, who was held in contempt repeatedly

throughout his colorful career, and who was discussed by Judge Davis with some

degree of reverence at this hearing , was never subjected to a proceeding designed to7

be an indictment of his entire career. Either, as Applicant suggested early on in the

hearing, the extraneous conduct evidence should never have come in or been

considered at the guilt stage of this proceeding, or Applicant should have been

entitled to a bifurcated proceeding, at which point he could have put in his own

“punishment” evidence. Since Applicant cannot find another case where extraneous

conduct evidence of this extreme “extraneousness” was put on in a criminal contempt

proceeding or considered in assessing punishment, it appears that this is a case of first

impression. Alternatively, none of the punishment-type evidence, or evidence of hurt

feelings, or evidence of motive, should have come in at all, as Applicant repeatedly

objected, because it was entirely irrelevant to the issue of guilt or punishment. All

the State had to show to establish contempt was not the purpose or intent to act, but

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that the act itself amounted to contempt of court. Ex parte Bailey, 142 Tex.Cr.R. 582,

155 S.W.2d 927 (1941); Ex parte Dowdle, 165 Tex.Cr.R. 536, 309 S.W.2d 458

(1958); Ex parte Pink, 746 S.W.2d 758, 761 (Tex.Crim.App. 1988).

Therefore, Applicant respectfully submits that this entire proceeding was a

violation of Applicant’s right to due process, and the judgment of contempt should

be vacated and this case remanded for a new hearing under Government Code

21.002(d).

GROUND FOR RELIEF FOUR: APPLICANT WAS DENIED DUE PROCESS

AND DUE COURSE OF LAW, IN VIOLATION OF HIS STATE AND FEDERAL

CONSTITUTIONAL RIGHTS, WHEN JUDGE DAVIS DECLINED TO RECUSE

THE TRAVIS COUNTY ATTORNEY’S OFFICE

Applicant moved to recuse the Travis County Attorney’s Office at the

commencement of this proceeding, because the Travis County Attorney’s Office was,

in fact, the movant in this contempt proceeding. While the State referred to Judge

Breland as the movant, it is clear from the record and from the judgment of contempt

that prosecutor Bill Swaim was in fact the movant in this case. See Appendix A,

Motion to Recuse; 1 RR MX 1 at “Judgment of Criminal Contempt of Court;” MX

2 at 6.

When arguing against this motion, Mr. Leavitt argued that his personal

There are any number of cases that say that an attorney has a duty to strenuously urge his8

client to do what is in the client’s actual best interests, as opposed to the client’s perceived bestinterests. Clearly, there is some misperception on the part of both the Travis County Attorney’sOffice and Judge Breland that being released from jail, as opposed to having one’s constitutionalrights vindicated, is in the best interests of the client, although they are correct that it isconducive to moving clogged trial dockets. It is clear from the record that both Judge Brelandand Mr. Leavitt are irritated that Applicant absolutely rejects their theory about what is truly inthe best interests of the client. It was Applicant’s opinion that his client’s release from jail onbond, which occurred after Applicant was found in contempt, meant that his client “Does notever get convicted now that he’s out of jail, that him being out of jail is the only difference in thecase, not the facts.” 1 RR 198. At the time of the contempt hearing, Applicant’s client has still

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relationships with anybody at this proceeding were entirely irrelevant to the

proceeding that was about to take place. However, Mr. Leavitt injected his personal

feelings into this proceedings and testified on behalf of Judge Breland, himself, and

the Travis County Attorney’s Office. Mr. Leavitt clearly understood that it is

inappropriate for counsel to testify. 1 RR 111. And yet he did so at several points.

Mr. Leavitt also used this hearing as a vehicle to discuss personal relationships, to

Applicant’s detriment. See fn. 5, supra. Mr. Leavitt also used this proceeding as a

vehicle to launch a complaint against Applicant with the State Bar on issues unrelated

to the contempt. See Appendix B and fn. 5, supra. Overall, Mr. Leavitt proved that

the Travis County Attorney’s Office, rather than being interested in seeing justice

done as to the specific offense of contempt, was indeed out to get Applicant.

The questioning about the Whoopsy! material was extensive. 1 RR 186-92.

Mr. Leavitt characterized Applicant’s determination to see that his client did not

plead guilty to an offense he was not factually guilty of as “threatening” and8

not been convicted.

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“coercive” and not in the client’s “interest.” 1 RR 194-95. In response to this line of

questioning, Applicant testified that Mr. Leavitt had refused to dismiss two cases that

the court’s trial chief had said there was no evidence to support, and that Mr. Leavitt

accused Applicant of wasting everybody’s time by trying his client’s cases. 1 RR

199. Thereafter ensued a line of questioning about Mr. Leavitt’s opinion that

Applicant was hurting his clients, and Applicant’s response that Mr. Leavitt’s actions

were patronizing, followed by Mr. Leavitt’s accusation that Applicant had previously

stolen a DWI videotape. 1 RR 201-02. Applicant then expressed the opinion that he

was being put through this proceeding, which clearly included issues far outside of

its proper scope, because

the county attorneys are looking to not allow me to try the cases and asmany cases and as often as I like. I want to put them to task on everysingle DWI that there is because I’ll get better results from a jury evenafter they’re found guilty, and that’s something that has caused a lot ofproblems between me and some county attorneys. And Bill was able tomake me snap and respond and I did. I’m not denying it. I’m not proudof it. You know, it’s what I told the judge, in my letter, was that itreflected a certain immaturity on my part. . . . I ‘ve allowed my emotionsto get the better of me. And do even want to publicly apologize againto the Judge, and I apologized in writing.

1 RR 204.

After the proceedings were over, Mr. Leavitt’s summation involved both

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testimony and personal feelings, his and others:

And the part about it that I take personally was an attack on me . . . .And the thing I take offense is a lawyer zealously representing his clientfor a jury trial and I’m going to hold that against a young lawyer, to me,is offensive because it’s not the truth.

2 RR 6.

Mr. Leavitt then discussed the ways in which he had personally tried to “help”

Applicant. 2 RR 6. Mr. Leavitt went on to say

In this case, I am proud to tell you, Judge, that we don’t have thisproblem in Travis County. We have got, I think, a very respectful barhere in Travis County that understands what is required of a lawyerwhen he take the oath of office to walk into a courtroom and how tobehave. And I’ve been part of that bar for 28 years now. And this is thefirst hearing in Travis County that I know of, and I’m not – nottestifying that there’s never been one, where we’ve got a lawyer held incontempt because of his behavior in front of a judge. But I don’t thinkthere’s much message that we need to send to the Travis County Bar .. . You know, as always, there’s a few renegades, and as the populationgrows and we get more and more lawyers, we get more and morerenegades . . . .

2 RR 8-10 (emphasis added). Even though Mr. Leavitt testified that his office was

not trying to send a message to “renegades” who might get out of line here in Travis

County, his words here and throughout the hearing clearly belied his stated intent.

Mr. Leavitt further testified. “It is a game to him. It is us against them.” 2 RR 12.

Mr. Leavitt finished with

I ask you to consider in trying to fashion out what proper punishment isfor the finding that you’ve made is to think a little bit about the woman

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who testified in front of you yesterday that I’ve known for 30 years,that’s Judge Jan Breland. How long, how much, how persistent hisconduct must have been for this woman, who is one of the sweetestwomen I’ve known in my life and had the most patience of anybody I’veever known, to get to the level that for the first time in almost 20 yearsshe had to hold a lawyer in contempt. She hates being here today morethan anybody in this courtroom and, for that, this gentleman needs to bepunished.

2 RR 13.

This hearing should have been a simple, straightforward matter. All the State

had to show to establish contempt was not the purpose or intent to act, but that the act

itself amounted to contempt of court. Ex parte Bailey, 142 Tex.Cr.R. 582, 155 S.W.2d

927 (1941); Ex parte Dowdle, 165 Tex.Cr.R. 536, 309 S.W.2d 458 (1958); Ex parte

Pink, 746 S.W.2d 758, 761 (Tex.Crim.App. 1988). “The essence of ‘contempt’ is that

the conduct obstructs or tends to obstruct the proper administration of justice. Ex

parte Salfen, 618 S.W.2d 766 (Tex.Crim.App.1981).” See also Ex parte Rose, 704

S.W.2d 751, 757 (Tex.Crim.App.1984).

Instead, far from being a disinterested prosecution in the interests of justice,

this was a protracted indictment of Applicant as a lawyer. Secondarily and despite

all denials, it was a message to the “renegades” out there who might take too many

cases to trial to fall in line and plead out their clients who would otherwise be stuck

in jail awaiting trial. Finally, this was not a contempt proceeding at all . . . it was a

preliminary disbarment proceeding disguised as a contempt hearing.

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This Honorable Court should therefore vacate the judgment of contempt and

remand this case for a hearing in which the prosecution is acting in the interests of

justice alone, presenting only evidence relevant to the matter before the court,

consistent with Applicant’s due process rights.

GROUND FOR RELIEF NUMBER FIVE: APPLICANT’S EIGHTH

AMENDMENT RIGHTS WERE VIOLATED WHEN HE RECEIVED AN

E X C ES S I V E S E N T E N C E R E L A T I V E T O W H A T O T H E R

ATTORNEY/CONTEMNORS HAVE RECEIVED IN OTHER CASES.

The protection against cruel and unusual punishments in the Eighth

Amendment applies to criminal contempt. United States ex rel. Brown v. Lederer,

140 F.2d 136, 139 (7 Cir. 1944); U.S. v. United Mine Workers of America, 330 U.S.th

258, 378 (1947). The sentence assessed in this case was entirely disproportionate to

the acts complained of – an obscene hand gesture, directed at the prosecutor, made

in a brief bench proceeding. In Ex parte Gibson, which was ultimately overturned by

this Court, contemnor was fined $300 for making a snide remark in a letter to the

Eighth Court of Appeals. 811 S.W.2d 594 (Tex. Crim App. 1991). Perpetual

contemnor Walter Pink was only assessed a sentence of seven days for disrupting an

entire trial, and no finding of contempt was made for exchanges with the prosecutor

involving “the finger,” in another case that was overturned on appeal. Ex parte Pink,

In a trial brief, the State argued that it is enough that the act was merely disrespectful,9

citing Ex parte Krupps, 712 S.W.2d 144, 149 (Tex.Crim.App.1986). However, that ignores theactual holding in Krupps, that the act complained of, a pro se litigant and six spectators, failed torise after repeatedly being admonished during the course of the trial, was disrespectful andobstructed the proper administration of justice. Id. at 151.

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746 S.W.2d 758 (Tex.Crim.App. 1988)[“In matters of contempt this applicant is no

stranger to this Court. See Ex parte Pink, 645 S.W.2d 262 (Tex.Cr.App.1982); Ex

parte Pink, Writ No. 10,259-92 (Motion for Leave to File Writ of Habeas Corpus

denied-Jan. 27, 1988)”]. Certainly what Applicant did was on the level of what Mr.

Pink did when he gave the prosecutor “the finger” and said, “Well, then, give that to

your mother.” Id. at 758 fn. 5. Contrary to Mr. Leavitt’s testimony, Applicant’s

action, while not professional, was not unprecedented in the annals of criminal law

in this State. This Court previously declined to find now-Justice Tim Taft in

contempt for filing a pleading, the primary purpose of which was to demean this

Court, and which was struck for that reason. Proctor v. State, 841 S.W.2d 1, 6

(Tex.Crim.App. 1992)(“Each motion contains highly offensive, inappropriate, and

scurrilous accusations against this Court.”).

As may be seen from the above examples, it is difficult to find a case where

offensive behavior was ultimately found to be contempt or punished at all. This may

be because whether someone is personally offended is irrelevant to the inquiry of9

whether an act constitutes contempt. Even assuming for the sake of argument that

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Applicant’s act constituted criminal contempt, the sentence in this case is just too

much. It is difficult to understand why Judge Davis determined that 90 days was the

appropriate punishment in this case, when he expressed such admiration for Mr. Pink,

who during trial called opposing counsel “a white devil,” “a godless individual,” “a

racist,” and shot him “the finger.” Ex parte Pink, 746 S.W.2d at 759 fn. 2.

The 90-day sentence assessed in this case is disproportionate to the act

complained of and violates the Eighth Amendment. Alternatively, it is improper

because the sentencing judge took into consideration matters which even he had

agreed at a previous point in the hearing were irrelevant to the act of contempt. This

Court should reverse the sentencing portion of this proceeding and reform the

sentence to one day.

WHEREFORE, PREMISES CONSIDERED, Applicant respectfully prays that

leave to file be granted, and that a writ of habeas corpus issue directing Judge Davis

to rescind his commitment order pending a new hearing consistent with the

requirements of the Government Code and Applicant’s state and federal rights to due

course of law and due process. Alternatively, Applicant prays that this Court find that

the evidence was insufficient to support the judgment of contempt and reverse and

render. Alternatively, Applicant prays that this Court reform the sentence to

something more in keeping with sentences that have been assessed against similarly

27

situated individuals, in keeping with the Eighth Amendment.

Respectfully submitted,

___________________________________Todd S. Dudley Karyl Anderson KrugTexas Bar No. 00792999 Texas Bar No. 00786033

The Law Office of Todd Dudley The Law Office of Karyl Krug812 San Antonio, Suite G-12 812 San Antonio, Suite G-12Austin, Texas 78701 Austin, Texas 78701(512) 444-4444 (512) 474-5544(512) 478-2828 (fax) (512) 478-2828 (fax)

kkrug@austin.rr.com

CERTIFICATE OF SERVICE

The undersigned counsel certifies that the foregoing pleading was served on

the Travis County Attorney, P.O. Box 1748, Austin, Texas, 78767; Attn: Mr Randy

Leavitt; via hand delivery, June 2, 2008.

____________________________Karyl Anderson Krug