in Re Christopher L. Graham

ACCEPTED
03-14-00270-CV
6855539
THIRD COURT OF APPEALS
AUSTIN, TEXAS
September 11, 2015 9/9/2015 5:08:33 PM
JEFFREY D. KYLE
CLERK
No. 03-14-00270-CV
__________________________________________________________
RECEIVED IN
3rd COURT OF APPEALS
IN THE COURT OF APPEALS FOR THE THIRD AUSTIN, TEXAS
DISTRICT OF TEXAS 9/9/2015 5:08:33 PM
__________________________________________________________
JEFFREY D. KYLE
Clerk
IN RE CHRISTOPHER L. GRAHAM
__________________________________________________________

On Appeal from the 207th Judicial District Court of Comal County, Texas
Cause No. CR2013-366
Honorable Gary Steel, District Judge Presiding
__________________________________________________________

BRIEF FOR THE STATE
__________________________________________________________

Jennifer Tharp
Criminal District Attorney

By
Daniel Palmitier
SBN: 24062934
Assistant District Attorney
150 N. Seguin Avenue, Suite #307
(830) 221-1300
Fax (830) 608-2008
New Braunfels, Texas 78130
E-mail: preslj@co.comal.tx.us
Attorney for the State

Oral Argument Is Requested
 Identity of Parties and Counsel

Attorneys for the Appellant Christopher L. Graham

AT TRIAL & ON APPEAL
Christopher L. Graham
P.O. Box 226265
Dallas, Texas
Telephone: (469) 605- 6846
Email: clgraham@lgi-law.com

Attorneys for the Appellee, The State of Texas

AT TRIAL & ON APPEAL
Daniel Palmitier
Assistant District Attorney
COMAL COUNTY CRIMINAL DISTRICT ATTORNEY’S OFFICE
150 N. Seguin Avenue, Suite 307
New Braunfels, Texas 78130
Telephone: (830) 221-1300
Facsimile: (830) 608-2008
Email: palmid@co.comal.tx.us

ii
 Table of Contents

Index of Authorities ................................................................................................. iv

Statement of Facts ......................................................................................................1

Summary of the Argument.........................................................................................4

Only the Trial Court and Court of Criminal Appeals Have Original
Habeas Corpus Jurisdiction .........................................................................4

Appellant Can Not Invoke the Original Habeas Corpus Jurisdiction of
the Court of Criminal Appeals .....................................................................5

Standard of Review for Contempt Order .......................................................7

Appellant’s Conduct Rose to the Level of Criminal Contempt ................7

Appellant Was Not Entitled to Court-Appointed Counsel at His
Contempt Hearing .......................................................................................13

Appellant Was Not Compelled to Testify at His Contempt Hearing .....14

Appellant Was Not Entitled to a Jury Trial ..............................................15

Appellant’s Due Process Rights Were Not Violated When His Show
Cause Hearing Was Transferred to Judge Shaver...................................17

Appellant’s Punishment Is Supported by the Record..............................20

Prayer .......................................................................................................................22

Certificate of Service ...............................................................................................23

Certificate of Compliance ........................................................................................23

iii
 Index of Authorities
Cases

Brown v United States, 356 U.S. 148 (1958) ....................................................... 9-12

Cortes v. State, 14-99-01194-CV, 2000
WL 328500, at *1 (Tex.App.—Houston
[14 th Dist.] Mar. 23, 2000, no pet.) (mem.
Op., not designated for publication) .......................................................................... 5

Denby v State, 627 S.W.2d 435 (Tex.App.,
Houston [1st Dist.] 1981, no pet.), cert. denied,
462 U.S. 1110 (1983) ................................................................................................. 5

Ex parte Alakayi, 102 S.W.3d 426 (Tex.
App.—Houston [14th Dist.] 2003, pet. ref’d).......................................................... 19

Ex parte Aldridge, 334 S.W.2d 161 (1959) ............................................................... 5

Ex parte Butler, 372 S.W.2d 686 (Tex. Crim.
App. 1963) ............................................................................................................. 8,9

Ex parte Cooper, 657 S.W.2d 320 (Tex. Crim.
App. 1983).................................................................................................................. 8

Ex Parte Eureste, 725 S.W.2d 214 (Tex. Crim.
App 1986)................................................................................................................... 6

Ex parte Hardin, 344 S.W.2d 152 (1961) .................................................................. 8

Ex parte Hearon, 3 S.W.3d 650 (Tex. App.
—Waco 1999, no pet.) ............................................................................................... 5

Ex parte Hosken, 480 S.W.2d 18 (Tex. Civ.
App.—Beaumont 1972, no writ) .............................................................................. 8

iv
Ex parte McIntyre,, 730 S.W.2d 411 (Tex.
App.—San Antonio 1987, no writ) .......................................................................... 14

Ex parte Murphy, 669 S.W.2d 320 (Tex.
Crim. App. 1983) ..........................................................................................7,8,12,20

Ex parte Privitt, 77 S.W.2d 663 (1934) ..................................................................... 8

Ex parte Reposa, AP-75,965, 2009 WL
3478455, at *4 (Tex. Crim. App. Oct.
28, 2009) (not designated for publication)...............................................7,8,18,20,21

Ex parte Rutherford, 556 S.W.2d 853
(Tex.Civ.App.—San Antonio 1977, no writ) ............................................................ 4

Ex parte Sproull, 815 S.W.3d 250 (Tex. 1991) ....................................................... 15

Ex parte Trillo, 540 S.W.2d 728 (Tex. Crim.
App. 1976).................................................................................................................. 6

Ex parte Vogler, 9 S.W.2d 733 (1928) ...................................................................... 8

Ex parte Werlbud, 536 S.W.2d 542
(Tex. 1976)) ............................................................................................................... 8

Ex parte Young, 257 S.W.3d 276 (Tex. App.
—Beaumont 2008, no pet.) ........................................................................................ 5

Ex parte Wilson, 559 S.W.2d 698 (Tex. Civ.
App.—Austin 1977, no writ) ..................................................................................... 8

Garcia v. State, 07-02-0358-CR, 2004
WL 2578097, (Tex. App.—Amarillo
Nov. 12, 2004, no pet.) (not designated
for publication) ......................................................................................................... 19

v
Ieppert v. State, 908 S.W.2d 217 (Tex.
Crim. App. 1995) ..................................................................................................... 18

In re Brown, 114 S.W.3d 7 (Tex. App.
—Amarillo 2003, no pet.) ..............................................................................14,15,16

In re Farquhar, 492 F.2d 561 (D.C.
Cir. 1973) ................................................................................................................... 8

In re Francis, 09-11-00116-CV, 2011
WL 3847447, (Tex. App.—Beaumont
Aug. 31, 2011, no pet.) (mem. op., not
designated for publication) ...................................................................................... 19

In re Graham, 03-14-00270-CV, 2014
WL 5107134, (Tex. App.—Austin
Oct. 9, 2014, no pet.) (mem. Order, not
designated for publication) ...................................................................................... 13

In re Monroe, 532 F.2d 424 (5th Cir.
[Tex] 1976 .................................................................................................................. 9

Lucero v. State, 91 S.W.3d 814 (Tex.
App.—Amarillo 2002, no pet.) (Quinn, J.,
concurring) (citing Harrison v. United
States, 392 U.S. 219, 223 (1968)) ............................................................................ 15

McCarroll v. Texas Dept. of Public Safety,
86 S.W.3d 376 (Tex.App.-Fort Worth
2002, no pet.) ........................................................................................................... 19

Rogers v. State, 640 S.W.2d 248
(Tex. Crim. App. 1981)(op. on reh’g) ..................................................................... 19

State ex rel. Wilson v. Briggs, 351
S.W.2d 892 (1961) ..................................................................................................... 4

vi
State ex rel. Wilson v. Briggs, 351
S.W.2d 892 (1961) ..................................................................................................... 4

Taylor v. District Court for the Fourth
Judicial District., 434 P2d 679, Alaska 1967 ............................................................ 9

Other Authorities

Tex. Const. art. V, § 5 ................................................................................................ 4
Tex. Gov’t Code § 21.002(d) ................................................................................... 17
Tex.R.App.P33.1(a) ................................................................................................... 8

vii
 Statement of Facts

Appellant was appointed to represent Chelsie Chenoweth on September 24,

2013 in cause number CR2013-366 in the District Court of Comal County (I C.R.

at 11). Graham’s contemptuous conduct began with Ms. Chenoweth’s arraignment

date on the February 25, 2014 docket call at 9:00 a.m. (I C.R. at 90). Ms.

Chenoweth’s case was called at 9:24 am, to which she announced her presence and

explained to the court that she had not heard from or seen Appellant (I R.R. at 15).

Graham eventually answered for Ms. Chenoweth at 9:38 am (I R.R. at 16). At

10:52 am Graham announced to the court that he had a plea ready to be heard for

Ms. Chenoweth (I R.R. at 18). At the time Graham announced he was ready for the

plea to be heard the court already had cases ready in front of Graham and Ms.

Chenoweth. Id.

The court had a practice of taking custody cases first so that jail transport

would only have to make one trip (I R.R. at 15). That day there were several

defendants in custody who had pleas ready, as well as a contested hearing that the

court had to hear before it could reach Appellant with Ms. Chenoweth (I R.R. at

18-19). The court then announced that it was taking up those matters and the cases

left on the docket, including Appellant’s with Ms. Chenoweth, would be reset to

1:15 (I R.R. at 19). The court reconvened at 1:34 and once again Ms. Chenoweth

was present and Appellant was not (I R.R. at 20). The court heard the remaining

1
cases that had been reset and recessed for the day at 1:46 p.m. Id. Appellant did not

show till 1:55 p.m. (I R.R. at 21).

The trial court then filed its show cause order that same day giving

Appellant the opportunity to explain why he should not be held in contempt for

“failing to arrive on time for docket call and [failing] to notify the court, and [he]

was ordered to return to court at 1:15 and failed to return at said time and arrived at

1:50” (I C.R. at 16). Appellant was notified to appear on March 13, 2014 for the

said show cause hearing. Id. The show cause order was sent to Appellant via

certified mail and it was received on February 27, 2014 (I C.R. at 17). Appellant

filed an unsworn response and request for continuance on March 10, 2014 stating

“There was no reason why the case could not have been addressed in the morning”

and that he had “hearings that are already scheduled for 3/13/2014 in the morning

and as a result [he] cannot appear” (I C.R. at 4-6). The continuance was not

granted and Graham failed to appear for his show cause hearing and for Ms.

Chenoweth’s pre-trial hearing on said date (I C.R. at 90; I R.R. at 58-62).

The trial court sua sponte removed Graham from Ms. Chenoweth’s case and

appointed new counsel (I C.R. at 22). The trial court then filed another show cause

order on March 17, 2014 giving Appellant the opportunity to appear on April 8,

2014 to show cause why he should not be held in contempt of court (I C.R. at 19).

The new show cause alleged the following transgressions: 1. Failure to arrive on

2
time to the 9:00am docket call on February 25, 2014; 2. Failure to return to Court

at 1:15pm on February 25, 2014 as instructed by the court; 3. Failure to appear in

Court on March 13, 2014 for Cause Number CR2013-366, State of Texas vs.

Chelsie Michelle Chenoweth, as well as Mr. Graham’s own Show Cause notice on

the same date without a granted continuance or leave from the court. Id. Appellant

was served with said notice on March 31, 2014. (I Supp. C.R. at 11).

The show cause hearing was heard by Judge Shaver and Appellant was

found to be in contempt for the transgressions in the show cause notice. (I C.R. at

24; I R.R. at 71). Judge Shaver found from the evidence that “the Defendant seems

to make his own determinations as to when he should or should not arrive in

court,” “it’s a continuing pattern” and “Mr. Graham’s conduct does obstruct the

administration of justice with the pattern that the evidence today has shown” (I

R.R. at 71). Judge Shaver set his punishment at 15 days in the Comal County Jail

and a $300 fine (I R.R. at 72.) Before being taken into custody by the bailiff

Appellant asked to “postpone that particular commission” and Judge Shaver

subsequently ordered an appeal bond in the amount of $5,000. Id. That same day

Appellant posted his $5,000 appeal bond (I Supp. C.R. at 14).

3
 Summary of the Argument

Appellant asserts his conduct did not rise to the level of criminal contempt

for being late to a 9:00am docket call on February 25, 2014, then returning late

from lunch to the 1:15 afternoon docket on the same date, and then failing to

appear at his own show cause hearing and pretrial setting for his client, Ms.

Chenoweth, on March 13, 2014. Appellant further claims that his due process

rights were violated in that he was not afforded an attorney at his hearing, he was

not advised of his right against self-incrimination, he was not afforded a right to

jury trial, and the case was illegally transferred to an administrative Judge with

there being no prior finding of contempt. The cases Appellant cites to for each of

his alleged errors do not actually hold such.

Only the Trial Court and Court of Criminal Appeals Have Original Habeas
Corpus Jurisdiction

The Court of Criminal Appeals is the only Appellate Court in Texas which

possesses the general and unlimited power to issue Writs of Habeas Corpus in

criminal cases. State ex rel. Wilson v. Briggs, 351 S.W.2d 892 (1961); Ex parte

Rutherford, 556 S.W.2d 853 (Tex.Civ.App.—San Antonio 1977, no writ); Tex.

Const. art. V, § 5. Since the acts of contempt committed by the Appellant were

criminal in nature, the State respectfully submits that the Court of Appeals does not

have the power to issue a Writ of Habeas Corpus in this case. Even the one-page

4
opinion that Appellant sites very distinctly states “This court has no jurisdiction to

grant relief sought in this proceeding [and] The Courts of Appeals have no original

habeas corpus jurisdiction in criminal matters; their jurisdiction is appellate only.

Tex. Code Crim. Pro. Ann. art. 4.03, as amended.” Denby v State, 627 S.W.2d 435

(Tex.App., Houston [1st Dist.] 1981, no pet.), cert. denied, 462 U.S. 1110 (1983).

“The Court of Criminal Appeals has the power and authority to grant and issue and

cause the issuance of writs of habeas corpus in criminal matters. Tex. Code Crim.

Pro. Ann. art. 4.04(1), as amended.” Id.

Appellant filed his “Application for Writ of Habeas Corpus” with the trial

court on March 19, 2015. (I C.R. 2nd Supp. at 4). However, it is clear from a review

of the entire record that Appellant did not secure a hearing or a ruling. See Ex parte

Young, 257 S.W.3d 276, 277 (Tex. App.—Beaumont 2008, no pet.) (“No appeal

lies from the refusal to issue a writ of habeas corpus unless the trial court rules on

the merits of the application.”). Furthermore, simultaneously filing a writ in the

trial court does not give appellate courts jurisdiction. Ex parte Hearon, 3 S.W.3d

650 (Tex. App.—Waco 1999, no pet.). Appellant may also not directly appeal his

order of contempt to this Court; his only remedy is by writ of habeas corpus. See

Ex parte Aldridge, 334 S.W.2d 161, 162 (1959); Cortes v. State, 14-99-01194-CV,

2000 WL 328500, at *1 (Tex. App.—Houston [14th Dist.] Mar. 23, 2000, no pet.)

(mem. op., not designated for publication).

5
 Appellant Can Not Invoke the Original Habeas Corpus Jurisdiction of the
Court of Criminal Appeals

Appellant claims he is illegally restrained as a result of the actions of

administrative law Judge Douglas Shaver. On April 8, 2014 Judge Shaver entered

a finding of contempt against Appellant and sentenced him to 15 days in the

county jail and a $300 fine (I C.R. at 24). That same day Appellant posted a $5,000

appeal bond approved by Judge Shaver and was released from custody (I C.R. at

14). As subsequently mentioned, Appellant then filed an application for writ of

habeas corpus with this Court. Appellant cites to Ex Parte Trillo, 540 S.W.2d 728,

731 (Tex. Crim. App. 1976) and argues that a person free on bond is also

considered to be in custody for habeas corpus purposes. Appellant is correct in that

a person free on bond can be considered to be in custody for habeas corpus

purposes; however, that is not the case where a person has been held to be in

contempt of court because any appeal bond would be invalid. See Ex Parte

Eureste, 725 S.W.2d 214, 216 (Tex. Crim. App 1986). There is no remedy or right

of appeal from an order of contempt and thus there can be no valid appeal bond. Id.

Just like in Eureste, Graham is not under restraint of a contempt order or a valid

bond and he therefore cannot invoke the original habeas corpus jurisdiction of the

Court of Criminal Appeals. See id.

6
 Standard of Review for Contempt Order

Appellate courts must uphold an order of contempt where the evidence,

when viewed in the light most favorable to the order, could reasonably be said to

have proven applicant guilty of the contemptuous acts alleged. See Ex parte

Murphy, 669 S.W.2d 320, 322 (Tex. Crim. App. 1983).

Appellant’s Conduct Rose to the Level of Criminal Contempt

Appellant claims his actions as alleged in the show cause order do not

amount to criminal contempt. Contempt of court is categorized as either criminal

or civil. Ex parte Reposa, AP-75,965, 2009 WL 3478455, at *4 (Tex. Crim. App.

Oct. 28, 2009) (not designated for publication). “The Texas contempt statute,

Government Code Section 21.002, encompasses both criminal and civil contempt,

but it neither defines criminal contempt nor delineates what conduct constitutes

contempt.” Id. “Texas courts, however, have long had inherent power to find and

punish for contempt [and] this power is broad and plenary.” Id. “Although the

exercise of this authority should be tempered with common sense and sound

discretion, nevertheless we accord the judge’s contempt power wide latitude

because it is essential to judicial independence and authority.” Id. Like Appellant’s

case, “[t]he more recent cases of criminal contempt have turned on whether the

conduct obstructed the administration of justice or hindered the forward progress

7
of a trial.” See id. “Criminal contempt has been defined by our predecessor court as

encompassing all those acts in disrespect of the court, or of its process, or which

obstruct the administration of justice, or tend to bring the court into disrepute.” Id.

Appellant’s contempt is of the criminal variety. See id.

Appellant’s repeated tardiness and absence are considered to be indirect or

constructive contempt. See Ex parte Murphy, 669 S.W.2d 320, 321 (Tex. Crim.

App. 1983); Ex parte Cooper, 657 S.W.2d 435, 437 (Tex. Crim. App. 1983).

Indirect or constructive contempt is an act which does not occur within the

presence of the court, but rather at a distance. Ex parte Hardin, 344 S.W.2d 152

(1961). This type of contempt tends to obstruct, degrade, prevent, interrupt, or

embarrass the administration of justice. Ex parte Privitt, 77 S.W.2d 663 (1934); Ex

parte Vogler, 9 S.W.2d 733, 734 (1928). If contempt is constructive, the alleged

contemnor has the right to notice of the charge, a right to a trial or hearing, and a

right to counsel. Ex parte Wilson, 559 S.W.2d 698, 700 (Tex. Civ. App.—Austin

1977, no writ); Ex parte Hosken, 480 S.W.2d 18, 24 (Tex. Civ. App.—Beaumont

1972, no writ).

Appellant claims his actions are similar to those in which other Texas courts

have held there was not contempt. He first sites to Ex parte Butler, 372 S.W.2d

686, 687 (Tex. Crim. App. 1963). The one page opinion details the attorney

contemnors acts as being 10 to 20 minutes late to one court because he appeared in

8
a court of equal jurisdiction first. See id. The court made clear that the potential

delay caused in trial for the offended court was at most 10- 20 minutes and this did

not rise to the level of contempt. See id. In fact, all cases that Appellant sites to

only deal with one act of being late. See In re Monroe, 532 F.2d 424, 425-426 (5th

Cir. [Tex] 1976; In Re Farquhar, 492 F.2d 561 (D.C. Cir. 1973); In Re Monroe,

532 F.2d 424 (5th Cir. 1976); Taylor v. District Court for the Fourth Judicial Dist.,

434 P.2d 679, Alaska 1967). What distinguishes Appellant’s behavior is his

repeated acts of tardiness and wholly failing to show to his client’s pretrial hearing

and his own show cause hearing (see I R.R. at 58-62). This resulted in Appellant

being sua sponte removed from Ms. Chenoweth’s case and new counsel having to

be appointed (I C.R. at 22).

Appellant attempts to minimize his actions in his brief. He refers to his

tardiness as “a few minutes late” and claims to have arrived “at around 9 am.”

Appellant’s Brief at 6, 8. He then states that he had to wait for several hours and he

had to bring the case to the Court’s attention several times. Id. at 8-9. He also

claims the court took an extended break. Id. He acknowledges that he was ordered

to return at 1:15 and claims he returned at 1:35pm. Id. at 9. He then asserts that he

was “wrongfully found guilty of contempt due to being tardy by a few minutes and

because he did not appear at the 3/13/2014 show cause hearing even though a

continuance was requested.” Id. at 10.

9
 The evidence in the contempt hearing actually showed that on the 9:00am

docket call Appellant was not present when Ms. Chenoweth’s name was called and

Appellant did not announce his presence till 9:38 a.m. Court Reporter Rick Roberts

testified that Appellant was not present when Ms. Chenoweth’s name was called

and he did not announce for her till 9:38 a.m. (I R.R. at 15-16). Ms. Chenoweth

testified that Appellant did not let her know he would be late and he did not show

up for at least 30 minutes after docket call (I R.R. at 30-31).

With regards to Appellant’s claim that the Court took an extended break, the

testimony in the contempt hearing is clear a recess was taken from 9:48 till 10:48,

not several hours (I R.R. at 17). Appellant then let the Court know he had a plea

ready at 10:52am (I R.R. at 18). Mr. Robert’s testimony explained that there were

several cases with defendants in custody and a contested motion to revoke ahead of

Appellant’s plea with Ms. Chenoweth, so Appellant was ordered to return at 1:15

p.m. (id. at 18-19).

The evidence in the contempt hearing was also clear in that the Appellant

did not return to the 1:15 afternoon docket until 1:55 p.m. Mr. Roberts testified that

Appellant did not return until approximately 1:55 p.m., after the court had recessed

for the day (I R.R. at 21). Ms. Chenoweth also testified that she returned at 1:15

and Appellant had not called to let her know he would be late; she was released by

the Judge before Appellant arrived (I R.R. at 31).

10
 Appellant next filed his “Response to Court’s Order to Show Cause and

Request for Continuance” on March 10, 2014, in response to the Court’s show

cause order filed on February 25, 2014 (I C.R. at 4). In Appellant’s response he

claims “I checked in the court shortly after 9 am,” “During the next few minutes…

the Court was notified that the plea in the case was ready to be heard,” “the Court

inexplicably took a break from conducting court activities from approximately

9:45 am until 11:20 am,” “the Court twice neglected to address that the State v.

Chenoweth case was ready for a plea,” “therefore from approximately 9 am until

1:15 pm counsel for Chenoweth was forced to wait on the Court to address this

case” and “there was no reason why the case could not have been addressed in the

morning.” Id. The Appellant also requested a continuance as he had “court

hearings scheduled in another district court on 3/13/2014.” Id.

The evidence in the contempt hearing showed that on March 13, 2014

Appellant did not appear for either his show cause hearing or the pretrial docket

hearing for Ms. Chenoweth. Ms. Chenoweth let the court know on said date that “I

don’t even know if he’s coming. I haven’t talked to him at all since the day I –

when I came back after lunch and he never showed up” (I R.R. at 23). Appellant’s

own testimony was that he failed to get a ruling on the continuance and failed to

show to court on March 13, 2014 (I R.R. at 57).

11
 What is clear from the record is Appellant’s lack of respect for the Court.

This is evidenced in his “Facts” stated in his “Response to Court’s Order to Show

Cause and Request for Continuance.” See I Supp. C.R. at 4-5. Also, when asked in

his contempt hearing who was to blame for Ms. Chenowith’s case not being

handled in an expeditious manner and if it was the Court’s fault, the Appellant

responded with “[w]ell, all I know is the plea paperwork was done in the morning

time, and, you know, there had to be a wait until 1:15, when, you know, the court

reporter indicated that basically pleas just take five minutes in order to get done” (I

R.R. at 63). He also explained that “[t]here is no reason… I should have been

forced to wait from, you know, 10:00 o’clock to 1:15 in order to do a plea” (I R.R.

at 62). Appellant also responded that he was not present on March 13, 2014

“Because the Court gave me an arbitrary date” (I R.R. at 62).

Appellant’s actions are more akin to cases like Ex Parte Murphy, where the

attorney failed to attend a pretrial hearing on August 12, 1983, and failed to appear

for the trial on the merits on August 22, 1983. See 669 S.W.2d at 321. The court of

appeals ultimately ruled that when viewed in the light most favorable to the order,

the evidence was sufficient to warrant a finding of contempt. See id. at 322. Ms.

Chenoweth expressed in the contempt hearing that she wanted to enter a plea on

February 25, 2014 and was unable to do so because of Appellant’s tardiness. (I

R.R. at 31). Again, she was not able to do so when Appellant failed to appear on

12
March 13, 2014 and was actually not able to plea with new counsel till May 19,

2014 (I C.R. at 42). When viewed in light most favorable to Appellant’s order of

contempt it is clear his tardiness and absence obstructed the administration of

justice.

Appellant Was Not Entitled to Court-Appointed Counsel at His Contempt
Hearing

Appellant claims he was not afforded the right to an attorney and that a pro

se party facing incarceration for indirect contempt must be informed of such right.

The record shows Appellant made a request for a court-appointed attorney and was

denied (I Supp. C.R. at 5). Appellant claims he was denied a hearing on the matter;

however, a review of the record makes it clear that he never made the request for a

hearing. Furthermore, Appellant is an attorney licensed to practice law in the State

of Texas and practices criminal law in multiple jurisdictions (I R.R. at 46). He now

makes the claim in this writ that he should have the right to an attorney in a

contempt hearing. Appellant is clearly aware of his right to counsel.

Even if a hearing on the issue of indigency had been conducted, Graham is

clearly not indigent. This Court has upheld such a finding during the relevant time

period. See In re Graham, 03-14-00270-CV, 2014 WL 5107134, at *1 (Tex.

App.—Austin Oct. 9, 2014, no pet.) (mem. order, not designated for publication).

This Court noted that:
13
 during the hearing, Graham (who is an attorney) equivocated when
asked specific questions about his income from court appointments in
various cities and counties, stating that he did not know what the exact
numbers were. He also would not state how much money he had made
on retained cases or how much his earnings were for the past year, again
stating that he did not know how much he had made. In addition,
Graham testified at the hearing that his parents pay his $750 per month
car payment, his approximate $1500 per month hotel bill, and provided
some part of the $5000 cash bond to get him released from jail.

Appellant now argues that he should have been appointed counsel without regard

to a claim of indigency. Texas Courts have held that a person charged with

contempt is not entitled to have an attorney present where they are aware of the

right to counsel and not indigent. See Ex parte McIntyre, 730 S.W.2d 411, 414-15

(Tex. App.—San Antonio 1987, no writ). Just like in Mcintyre, Appellant does not

claim in his writ of habeas corpus that he is indigent, but argues that he should

have been afforded counsel without regard to the question of whether he was an

indigent. See id. at 415. It is clear from the order sustaining contest of Appellant’s

indegency that he is not indigent and is therefore not entitled to appointed counsel.

Appellant Was Not Compelled to Testify at His Contempt Hearing

Appellant contends he should have been admonished of his right against

self-incrimination if he was compelled to testify and sites to In re Brown, 114

S.W.3d 7, 12-13 (Tex. App.—Amarillo 2003, no pet.). Appellant fails to provide

details of how he was compelled to testify. Additionally, he was not in custody at

14
the time of his contempt hearing. Whether the Fifth Amendment is implicated

when an individual testifies does not depend on whether the witness made a

knowing decision to testify, but on why he or she chose to testify. See Lucero v.

State, 91 S.W.3d 814, 818 (Tex. App.—Amarillo 2002, no pet.) (Quinn, J.,

concurring) (citing Harrison v. United States, 392 U.S. 219, 223 (1968)). In

making such a determination, the totality of the circumstances must be assessed. If

the decision constituted an exercise in free will, then the Fifth Amendment right to

be free from compelled self-incrimination is not implicated. In re Brown, 114

S.W.3d 7, 12 (Tex. App.—Amarillo 2003, no pet.) Appellant does not contend that

he was either directly or indirectly coerced to testify. He also does not assert that

he was unaware of his right not to be compelled to testify, or that he would not

have testified had he been admonished of that right by the trial court. The totality

of the circumstances compels the conclusion that Appellant exercised his free will

in deciding to testify. See In re Brown, 114 S.W.3d 7, 12-13 (Tex. App.—Amarillo

2003, no pet.).

Appellant Was Not Entitled to a Jury Trial

Appellant claims he was entitled to a jury trial and sites to Ex Parte

Werlbud, 536 S.W.2d 542 (Tex. 1976) and Ex Parte Sproull, 815 S.W.2d 250

(Tex. 1991). Appellant makes the leap that since he was alleged to have committed

15
several acts of contempt he was subject to serious punishment and therefore must

have been notified of the right to jury trial. Both cases were subsequently analyzed

thoroughly in the same context in which Appellant claims he should have been

notified of the right to jury trial. See In re Brown, 114 S.W.3d 7, 10-12 (Tex.

App.—Amarillo 2003, no pet.). “Werblud states clearly the applicable dividing line

between petty and serious contempt: unless the legislature has authorized a serious

punishment for contempt (which the Texas legislature has not), the punishment

imposed determines whether the contempt is petty or serious, not the punishment

possible.” Id. (emphasis added). “The Texas contempt statute at the time Werblud

was decided provided punishment for contempt of court as a fine of not more than

$500 or confinement in the county jail for not more than six months, or both, and

was intended to keep contempt punishments within the petty offense category.” Id.

The opinion in Brown concluded “The punishment imposed on relator falls on the

petty crime side of the line. He was not entitled to a jury trial, and he was not

entitled to be admonished otherwise.” Id. Although the punishment possible for

Appellant was over 6 months, the punishment actually imposed was 15 days in the

county jail and a $300 fine (I R.R. at 72). Appellant was therefore not entitled to be

admonished of his right to jury trial.

16
 Appellant’s Due Process Rights Were Not Violated When His Show Cause
Hearing Was Transferred to Judge Shaver

Appellant contends his case was illegally transferred to administrative Judge

Douglas Shaver and his due process rights were violated because he was not first

found in contempt by the trial court as required by Tex. Gov’t Code § 21.002(d).

Appellant contends in his brief “that in order to invoke the mandatory requirement

for a trial court to refer contempt proceedings… the following must take place 1)

the offended court must enter a finding of contempt against an officer of the court

and 2) the officer of the court must file a proper motion in the offended court.”

Appellant’s Brief at 18,19.

Graham’s show cause hearing on April 8, 2014 did not violate Tex. Gov’t

Code Sec.21.002(d) which states:

“An officer of a court who is held in contempt by a trial court shall, on
proper motion filed in the offended court, be released on his own
personal recognizance pending a determination of his guilt or
innocence. The presiding judge of the administrative judicial region
in which the alleged contempt occurred shall assign a judge who is
subject to assignment by the presiding judge other than the judge of
the offended court to determine the guilt or innocence of the officer of
the court.”

Appellant was not held in contempt by the trial court, the Honorable Gary Steel

presiding. Instead, Appellant was issued two “show cause” notices from Judge

Steel, who ultimately then provided Appellant a hearing before Judge Shaver, a

non-offended, neutral Judge. Judge Shaver then held Appellant in contempt after a

17
hearing determining his guilt or innocence. Section 21.002(d) provides that officers

of the court, like Appellant, are entitled to a personal recognizance bond pending a

hearing on their guilt or innocence.

Had Appellant been held in contempt by Judge Steel, he would have been

entitled to said bond pending his hearing before Judge Shaver. Instead, Appellant

failed to appear to his first show cause hearing on March 13, 2014 and remained

free from a finding of contempt – and therefore, the need for a personal

recognizance bond. “The contempt statute itself says little about the procedures to

be followed during a contempt hearing, except to provide for a separate proceeding

for an officer of the court where an assigned judge determines guilt or innocence”

Ex parte Reposa, 2009 WL 3478455, at *7. The whole procedure complied with

Section 21.002(d) in that Graham had his hearing before a judge other than the

judge of the offended court to determine Appellant’s guilt or innocence.

Furthermore, Graham was personally served with the show cause notice on March

31, 2014 (I Supp. C.R. at 11).

Although Appellant now complains the proceedings violated his procedural

due process rights, he did not make this complaint at the hearing where Judge

Shaver originally found him in contempt. See Ieppert v. State, 908 S.W.2d 217,

219 (Tex. Crim. App. 1995) (observing that even due process rights may be

forfeited); see also Tex. R. App. P. 33.1(a) (generally a complaint must be made to

18
the trial court by a timely request, objection or motion to preserve error for

appellate review); Rogers v. State, 640 S.W.2d 248, 263-64 (Tex. Crim. App.

1981) (op. on reh’g) (holding that procedural due process issues are subject to

waiver under the standard preservation-of-error rules); Ex parte Alakayi, 102

S.W.3d 426, 434-35 (Tex. App.—Houston [14th Dist.] 2003, pet. ref’d) (finding

that appellant had waived his procedural due process complaint by failing to raise

the issue with the trial court); McCarroll v. Texas Dept. Of Public Safety, 86

S.W.3d 376, 379 (Tex.App.-Fort Worth 2002, no pet.) (holding that appellant

waived his procedural due process complaint by failing to present it to the trial

court). Where an appellant’s complaints on appeal do not comport with his trial

objections, nothing is preserved for review. See Garcia v. State, 07-02-0358-CR,

2004 WL 2578097, at *5 (Tex. App.—Amarillo Nov. 12, 2004, no pet.) (not

designated for publication) (“Appellant’s first issue on appeal does not comport

with his trial objection, and presents nothing for our review.”) (internal citations

omitted). Appellant in the instant case likewise failed to raise his due process

complaint with the trial court, nothing is preserved for review.

Furthermore, even if Appellant had preserved his point of error, he has not

explained how such an alleged departure from procedure harmed him or resulted in

a denial of procedural due process. See In re Francis, 09-11-00116-CV, 2011 WL

3847447, at *2 (Tex. App.—Beaumont Aug. 31, 2011, no pet.) (mem. op., not

19
designated for publication). In fact, the procedure in Appellant’s case ‘cured’ any

procedural due process error. See Ex parte Murphy, 669 S.W.2d 320, 321 (Tex.

Crim. App. 1983) (where the Court of Criminal Appeals found a subsequent de

novo hearing cured an earlier denial of an appellant’s due process due to lack of

notice). In the instant case, Appellant was actually afforded more protection than

procedural due process requires. Courts have observed that one concern in cases of

contempt is that trial 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, 153 (1958). In Appellant’s case, the fact that a judge other

than the offended judge conducted the hearing and ultimately found Appellant in

contempt removed the concern expressed in Brown. Appellant cannot complain he

was harmed by being taken before a more impartial court – one less likely to have

been personally offended by and prejudiced against Appellant.

Appellant’s Punishment Is Supported by the Record

Appellant contends that punishment of 15 days in the Comal County Jail is

draconian. Texas courts have long held that a sentence which falls within the

statutorily prescribed range of punishment is not cruel and unusual under the

Constitution, nor does it “render the punishment excessive and insupportable.” Ex

parte Reposa, 2009 WL 3478455, at *13. This rule is limited, however, by the

20
gross-disproportionality principle embodied in the Eighth Amendment's Cruel and

Unusual Punishments Clause, applicable to noncapital sentences, which proscribes

punishments that are disproportionate to the crime. Id. at *14. In Ex parte Reposa,

the Court of Criminal Appeals found that the “[s]entence of ninety days is in the

middle of the range of punishment permitted by the contempt statute” and “Judge

Davis had broad discretion to assess punishment within that legislatively-

prescribed range.” Id. Appellant fails to cite to precedent or explain how his

significantly lesser punishment of 15 days in the Comal County Jail is

disproportionate to the crime.

21
 Prayer

Wherefore, premises considered, Appellee prays that this Honorable Court

of Appeals affirm in all matters the judgment of the trial court in this case.

Appellee also prays for all other relief, both special and general, in law and in

equity, to which it may be entitled.

Jennifer Tharp
Criminal District Attorney

By

/s/ Daniel Palmitier
Daniel Palmitier
SBN: 24062934
Assistant District Attorney
150 N. Seguin Avenue, Ste. #307
New Braunfels, Texas 78130
(830) 221-1300
Fax (830) 608-2008
E-mail: palmid@co.comal.tx.us
Attorney for the State

22
 Certificate of Service

I, Daniel Palmitier, attorney for the State of Texas, Appellee, hereby certify
that a true and correct copy of this Brief for the State and the attached appendix has
been delivered to Appellant, Christopher L. Graham, attorney of record in this
matter:

Christopher L. Graham
P.O. Box 226265
Dallas, Texas 75222
Telephone: (469) 605- 6846
Email: clgraham@lgi-law.com
Attorney for Appellant on Appeal

By electronically sending it to the above-listed email address through
efile.txcourts.gov e-filing, this 9th day of September, 2015.

/s/ Daniel Palmitier
Daniel Palmitier

Certificate of Compliance

I hereby certify, pursuant to Rule 9.4(i)(2)(B) and Rule 9.4(i)(3) of the Texas
Rules of Appellate procedure that the instant brief is computer-generated using
Microsoft Word and said computer program has identified that there are 5,317
words within the portions of this brief required to be counted by Rule 9.4(i)(1) &
(2) of the Texas Rules of Appellate Procedure.
The document was prepared in proportionally-spaced typeface using Times
New Roman 14 for text and Times New Roman 12 for footnotes.

/s/ Daniel Palmitier
Daniel Palmitier

23
Appendix

24
§ 5. Jurisdiction of Court of Criminal Appeals; terms of court; clerk, TX CONST Art. 5, § 5

Vernon’s Texas Statutes and Codes Annotated
Constitution of the State of Texas 1876 (Refs & Annos)
Article V. Judicial Department

Vernon’s Ann.Texas Const. Art. 5, § 5

§ 5. Jurisdiction of Court of Criminal Appeals; terms of court; clerk

Effective: November 26, 2001
Currentness

Sec. 5. (a) The Court of Criminal Appeals shall have final appellate jurisdiction coextensive with the limits of the state, and
its determinations shall be final, in all criminal cases of whatever grade, with such exceptions and under such regulations as
may be provided in this Constitution or as prescribed by law.

(b) The appeal of all cases in which the death penalty has been assessed shall be to the Court of Criminal Appeals. The appeal
of all other criminal cases shall be to the Courts of Appeal as prescribed by law. In addition, the Court of Criminal Appeals
may, on its own motion, review a decision of a Court of Appeals in a criminal case as provided by law. Discretionary review
by the Court of Criminal Appeals is not a matter of right, but of sound judicial discretion.

(c) Subject to such regulations as may be prescribed by law, the Court of Criminal Appeals and the Judges thereof shall have
the power to issue the writ of habeas corpus, and, in criminal law matters, the writs of mandamus, procedendo, prohibition,
and certiorari. The Court and the Judges thereof shall have the power to issue such other writs as may be necessary to protect
its jurisdiction or enforce its judgments. The court shall have the power upon affidavit or otherwise to ascertain such matters
of fact as may be necessary to the exercise of its jurisdiction.

Credits

Amended Aug. 11, 1891, proclamation Sept. 22, 1891; Nov. 8, 1966; Nov. 8, 1977, eff. Jan. 1, 1978; Nov. 4, 1980, eff. Sept.
1, 1981; Nov. 6, 2001, eff. Nov. 26, 2001.

Editors’ Notes

INTERPRETIVE COMMENTARY

2007 Main Volume

In defining the jurisdiction of the court of criminal appeals, this section confines its powers to the exercise of
appellate jurisdiction in criminal matters exclusively. It thus has no civil jurisdiction, but it is the court of final
jurisdiction in criminal matters.

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 1
§ 5. Jurisdiction of Court of Criminal Appeals; terms of court; clerk, TX CONST Art. 5, § 5

The two high courts in Texas are, therefore, independent of each other, the supreme court being the final tribunal in
civil matters and the court of criminal appeals supreme in criminal. Since it is not possible to set forth their
jurisdiction so as to eliminate all possibilities of conflict, there have been some instances of disagreement between
the two supreme courts as to the constitutionality of statutes.

Section 5 grants to the court jurisdiction in criminal cases “with such exceptions and under such regulations as may
be prescribed by law.” This provision demonstrates the intent of the framers to place criminal appeals within the
province of the legislative body which may make exceptions to the right of appeal, create regulations concerning
the jurisdiction of the court, and create rules applicable to the prosecuting of an appeal. The court cannot, therefore,
go beyond constitutional and legislative limitations on its powers.

The court, like the supreme court, is also given the power to issue writs of habeas corpus and other writs necessary
to enforce its jurisdiction, the latter under such regulations as may be prescribed by law. Thus, the jurisdiction of
the court is completely appellate except in regard to the issuance of the writ of habeas corpus where it has original
jurisdiction.

Like the supreme court, this court is empowered “upon affidavit or otherwise, to ascertain such matters of fact as
may be necessary to the exercise of its jurisdiction.” Only this respect, as to the exercise of its own jurisdiction,
may it consider matters of fact, for it is an appellate court, and as such is without jurisdiction to hear evidence and
from it to determine issues of fact.

A rigid, non-continuous term is set out by this section for the court of criminal appeals wherein it is provided that
the court “shall sit for the transaction of business from the first Monday in October to the last Saturday of June in
each year.” This signifies that the decisions of the court must be handed down during this term, for during the three
months’ vacation the court is without power as a tribunal.

Again, as distinguished from the supreme court, the legislature is empowered to provide that the court shall sit “at
the state capital and two other places (or the capital city).” The legislature has prescribed that the court shall sit only
at the capital, the city of Austin. Vernon’s Ann.Civ.St. art. 180.4.

The court of criminal appeals also has the power to appoint a clerk for a four year term, unless removed sooner by
the court for good cause.

Notes of Decisions (302)

Vernon’s Ann. Texas Const. Art. 5, § 5, TX CONST Art. 5, § 5
Current through the end of the 2015 Regular Session of the 84th Legislature
End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 2
§ 21.002. Contempt of Court, TX GOVT § 21.002

Vernon's Texas Statutes and Codes Annotated
Government Code (Refs & Annos)
Title 2. Judicial Branch (Refs & Annos)
Subtitle A. Courts
Chapter 21. General Provisions (Refs & Annos)

V.T.C.A., Government Code § 21.002

§ 21.002. Contempt of Court

Effective: June 20, 2003
Currentness

(a) Except as provided by Subsection (g), a court may punish for contempt.

(b) The punishment for contempt of a court other than a justice court or municipal court is a fine of not more than $500 or
confinement in the county jail for not more than six months, or both such a fine and confinement in jail.

(c) The punishment for contempt of a justice court or municipal court is a fine of not more than $100 or confinement in the
county or city jail for not more than three days, or both such a fine and confinement in jail.

(d) An officer of a court who is held in contempt by a trial court shall, on proper motion filed in the offended court, be released
on his own personal recognizance pending a determination of his guilt or innocence. The presiding judge of the administrative
judicial region in which the alleged contempt occurred shall assign a judge who is subject to assignment by the presiding judge
other than the judge of the offended court to determine the guilt or innocence of the officer of the court.

(e) Except as provided by Subsection (h), this section does not affect a court's power to confine a contemner to compel the
contemner to obey a court order.

(f) Article 42.033, Code of Criminal Procedure, and Chapter 157, Family Code, apply when a person is punished by confinement
for contempt of court for disobedience of a court order to make periodic payments for the support of a child. Subsection (h)
does not apply to that person.

(g) A court may not punish by contempt an employee or an agency or institution of this state for failure to initiate any program
or to perform a statutory duty related to that program:

(1) if the legislature has not specifically and adequately funded the program; or

(2) until a reasonable time has passed to allow implementation of a program specifically and adequately funded by the
legislature.

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 1
§ 21.002. Contempt of Court, TX GOVT § 21.002

(h) Notwithstanding any other law, a person may not be confined for contempt of court longer than:

(1) 18 months, including three or more periods of confinement for contempt arising out of the same matter that equal a
cumulative total of 18 months, if the confinement is for criminal contempt; or

(2) the lesser of 18 months or the period from the date of confinement to the date the person complies with the court order
that was the basis of the finding of contempt, if the confinement is for civil contempt.

Credits
Acts 1985, 69th Leg., ch. 480, § 1, eff. Sept. 1, 1985. Amended by Acts 1989, 71st Leg., ch. 2, § 8.44(1), eff. Aug. 28, 1989;
Acts 1989, 71st Leg., ch. 560, § 1, eff. June 14, 1989; Acts 1989, 71st Leg., ch. 646, § 1, eff. Aug. 28, 1989; Acts 1989, 71st
Leg., 1st C.S., ch. 25, § 34, eff. Nov. 1, 1989; Acts 1995, 74th Leg., ch. 262, § 87, eff. Jan. 1, 1996; Acts 1997, 75th Leg.,
ch. 165, § 7.24, eff. Sept. 1, 1997; Acts 2001, 77th Leg., ch. 1297, § 71(4), eff. Sept. 1, 2001; Acts 2003, 78th Leg., ch. 425
§ 1, eff. June 20, 2003.

Relevant Notes of Decisions (2)
View all 578
Notes of Decisions listed below contain your search terms.

Due process

Trial court was required to follow due process protections contained in § 21.002 in imposing attorney fees against attorney as
sanction for attorney's misbehavior under § 82.061 governing misbehavior or contempt by attorneys during trial; also sanctions
imposed exceeded trial court's authority under § 21.002. Kidd v. Lance (App. 3 Dist. 1990) 794 S.W.2d 586. Constitutional
Law 4494; Contempt 68

Officer of court--In general

A court would likely conclude that an attorney held in contempt under V.T.C.A., Government Code section 665.005 is entitled
to the protections of V.T.C.A., Government Code section 21.002(d). Tex. Atty. Gen. Op., No. GA-1057 (2014).

V. T. C. A., Government Code § 21.002, TX GOVT § 21.002
Current through the end of the 2015 Regular Session of the 84th Legislature

End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 2
33.1. Preservation; How Shown, TX R APP Rule 33.1

Vernon's Texas Rules Annotated
Texas Rules of Appellate Procedure
Section Two. Appeals from Trial Court Judgments and Orders (Refs & Annos)
Rule 33. Preservation of Appellate Complaints (Refs & Annos)

TX Rules App.Proc., Rule 33.1

33.1. Preservation; How Shown

Currentness

(a) In General. As a prerequisite to presenting a complaint for appellate review, the record must show that:

(1) the complaint was made to the trial court by a timely request, objection, or motion that:

(A) stated the grounds for the ruling that the complaining party sought from the trial court with sufficient specificity to
make the trial court aware of the complaint, unless the specific grounds were apparent from the context; and

(B) complied with the requirements of the Texas Rules of Civil or Criminal Evidence or the Texas Rules of Civil or
Appellate Procedure; and

(2) the trial court:

(A) ruled on the request, objection, or motion, either expressly or implicitly; or

(B) refused to rule on the request, objection, or motion, and the complaining party objected to the refusal.

(b) Ruling by Operation of Law. In a civil case, the overruling by operation of law of a motion for new trial or a motion to modify
the judgment preserves for appellate review a complaint properly made in the motion, unless taking evidence was necessary
to properly present the complaint in the trial court.

(c) Formal Exception and Separate Order Not Required. Neither a formal exception to a trial court ruling or order nor a signed,
separate order is required to preserve a complaint for appeal.

(d) Sufficiency of Evidence Complaints in Nonjury Cases. In a nonjury case, a complaint regarding the legal or factual
insufficiency of the evidence--including a complaint that the damages found by the court are excessive or inadequate, as
distinguished from a complaint that the trial court erred in refusing to amend a fact finding or to make an additional finding of
fact--may be made for the first time on appeal in the complaining party's brief.

Credits
Eff. Sept. 1, 1997. Amended by Supreme Court Dec. 23, 2002, eff. Jan. 1, 2003.

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 1
33.1. Preservation; How Shown, TX R APP Rule 33.1

Editors' Notes

NOTES AND COMMENTS
Comment to 2002 change: The last sentence of former Rule 52(d) of the Rules of Appellate Procedure has been
reinstated in substance.

Notes of Decisions (3438)

Rules App. Proc., Rule 33.1, TX R APP Rule 33.1
Current with amendments received through 6/1/2015

End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 2