This is an original habeas corpus action. Applicant is a Dallas attorney who was defense counsel in a case being tried before the Honorable L. Clifford Davis, Judge of Criminal District Court Number Two of Tarrant County, Texas in November 1987. The Honorable Harry Hopkins adjudged applicant guilty of contempt of court on August 12, 1988. See Government Code Section 21.002(d). Punishment was assessed at twelve (12) hours in the County Jail of Tarrant County and a fine of $500.00. Applicant prays that this Court grant his writ and discharge him from the aforementioned restraint. We will grant applicant's writ.
The applicable facts from trial are these. During the trial of William David Tinney, in which applicant was defense attorney, the credibility of a State's witness came into question. That witness had allegedly forged a deal with the State in return for testimony against Tinney. Defense counsel *Page 99 attempted to explore this deal with Officer Ron Hale, who was on the stand. At that time the court ordered that it would permit the following:
"Okay. I am going permit [sic] testimony limited to showing whether or not this officer or any other officer working with him that he has the knowledge, personal knowledge, made some kind of, to use your terms, cut slack with the accused [sic — refers to informant, not accused] for whatever cooperation he did or to act as an informant. I am going to limit your examination to that extent."
At this point both the State and the defense asked for clarification [which comes as no surprise to this Court]. The trial court went on to say
"I will permit you to show, if you can, that this officer or someone working with him and about which he has personal knowledge, quote, cut some slack, or worked an arrangement for the witness Hill to act as an informant. You can show that. The specific acts, behavior, conduct that he did, we will not."
Questioning of Officer Hale continued, and when the testimony got into the area of the deal that was struck an objection was raised by the State. Several pages of trial transcript are devoted to applicant expressing confusion with the court's order and the court attempting to clarify. The following is a portion of what transpired.
COURT: I told you a while ago, clearly, that you could identify those as misdemeanor or what class of felony cases they were, and the term heavy cases was your term that I used. The term, cut some slack, was your term that I used to be certain that I was using your language.
MR. TAYLOR: Now when I identify it as a felony case, can I ask him to designate under your ruling in the presence of the jury, was it a felony theft case as opposed to a felony murder case or robbery case?
COURT: No sir. You may ask him if it were a felony case, if it were a whatever other kind of case you say that he had pending, that he worked some kind of — that this officer or somebody working with him cut him some slack in.
Later in the testimony of Officer Hale, regarding the mechanics of how the deal came about, the following transpired:
MR. TAYLOR: Tell the jury what you said to Hill.
OFFICER HALE: Okay. After I had talked with the Balch Springs Police Department, I had learned that, that there was a —
MR. WHITE (STATE): I'm going to object to him testifying as to what he learned. I believe he is not being responsive to the question. I believe he asked him what he said to Hill. Nonresponsive.
COURT: I'll sustain.
MR. TAYLOR: Without saying what you had learned, tell the jury what you said to Hill after you had talked to him.
OFFICER HALE: I talked to him and asked him about the origin of the tapes.
MR. TAYLOR: And what was Hill's response?
OFFICER HALE: He was at first reluctant to talk about the tape at all.
MR. TAYLOR: What did you respond to him when he was reluctant to talk to you about the tapes?
OFFICER HALE: That I thought they might have been obtained illegally and that I would like to know if he had any knowledge of obtaining.
MR. TAYLOR: Did you confront Hill with the method of illegally obtaining those tapes that you thought had occurred?
OFFICER HALE: Yes, I did.
MR. TAYLOR: What was that?
OFFICER HALE: Okay, I . . . the tapes were allegedly obtained through a robbery. [emphasis supplied].
MR. WHITE: I'm going to object to that, Your Honor. I believe he's familiar with the Court's instructions and I'm going to object to the witness's violation of them.
State's objection was to the witness's answer, not applicant's question.
The amended show cause order states that applicant did knowingly, intentionally, *Page 100 deliberately, and willfully violate the specific instructions of the court prohibiting applicant from injecting the details of any alleged offenses by Jackie Hill, by eliciting from witness Officer Ron Hale the following testimony, to wit:
MR. TAYLOR: Did you confront Hill with the method of illegally obtaining those tapes that you thought had occurred?
OFFICER HALE: Yes, I did.
MR. TAYLOR: What was that?
OFFICER HALE: Okay, I . . . the tapes were allegedly obtained through a robbery.
We believe Officer Hale's answer was nonresponsive. We further believe that the nonresponsive answer to applicant's question renders the evidence insufficient to support a finding of contempt. Answers should be responsive to the questions asked and witnesses are not permitted to make to the jury voluntary ex parte statements that are not in response to any questions, especially as to facts that are inadmissible. A party will not be held responsible for the unresponsive answers or gratuitous remarks of his witnesses. Tex.Jur.2d, Witnesses; see also Galveston, Harrisburg and San Antonio Railway Co.v. Harper, 114 S.W. 1168 (Tex.Civ.App. 1908); Sauerv. Veltman, 149 S.W. 706 (Tex.Civ.App. 1912); Walkeret ux. v. Dickey, 98 S.W. 658 (Tex.Civ.App. 1906).
Additionally, we are unwilling to hold applicant responsible for asking a question that could just as well have been responsively answered a number of ways without violating the court's order, e.g., by answering that the tapes were allegedly obtained in the commission of a felony (as opposed to "obtained through a robbery"), etc. Officer Hale was an experienced police officer witness who was on the stand during the above exchanges between applicant and the court. Officer Hale knew or should have known that his testimony referring specifically to robbery was inadmissible. Johnson v. State, 660 S.W.2d 536 (Tex.Cr.App. 1983, dissenting opinion by Judge Teague),
Johnson, 660 S.W.2d at 539. See also Richardsonv. State, 379 S.W.2d 913 (Tex.Cr.App. 1964). At the very least, we believe it was reasonable for Taylor to assume Hale would answer the question in a manner that Hale knew would not violate the court's order, which Hale had just heard (i.e. trial judge instructed counsel he could use the words felony or 1st degree felony or "heavy case", instead of robbery).". . . I also find that Green, who at the time of trial had been a member of the Department of Public Safety since 1969, and an undercover narcotics officer for approximately three years, knew or should have known not to have given the unresponsive answer he did . . . ".
We do not find in the case at bar that the question preceding the answer was calculated to elicit an improper response. The fact that the police officer witness chose to give details not called for by the question and violative of the court's order is not a basis for contempt to be levied upon counsel.1 The relief sought is granted.
WHITE, J., concurs in the result.