I dissent. The plurality opinion is fundamentally flawed in three respects. First, the plurality improperly characterizes the witness's responsive statement as being unresponsive. Second, the plurality omits from its opinion the fact that the question leading to the prohibited reply was one of at least three violations of the court order, and the product of a lengthy and methodical examination clearly crafted to elicit the reply. Last, the plurality opinion cites snippets of the court's order out of context, thereby suggesting the order was unclear. This eschewal of fact paints a false picture of the circumstances surrounding the contempt action. I write this dissent to set forth the record in a more complete fashion.
Applicant1 served as defense counsel in an aggravated robbery trial. During trial, applicant sought to question police officer Ron Hale about police relations with an informant, which ostensibly enabled the police to secure the informant's services in the case against applicant's client. A bone of contention arose when applicant sought to establish the specific details of any offenses for which the informant was indicted. The court, however, would not permit testimony regarding the details or specifics of those cases. The court repeatedly admonished applicant to limit the line of questioning to the general nature of the offenses; that is, whether they were misdemeanors or felonies or even the degree of those felonies, and whether they were considered "serious" or "heavy" offenses. Undaunted by the admonishments, applicant repeatedly sought to establish the specific facts underlying the offenses and, as a result, was eventually held in contempt and sentenced to twelve hours confinement in the Tarrant County Jail and a fine of five hundred dollars.
Specifically, applicant was cited for the following exchange:
[TAYLOR] Q. Did you confront [the informant] with the method of illegally obtaining those tapes that you thought had occurred?
[WITNESS] A. Yes, I did.
Q. What was that?
A. Okay. I — The tapes where (sic) allegedly obtained through a robbery.
Applicant raises the following grounds for review: 1) the evidence was insufficient to support a conviction for contempt because the court's order was inconsistent, the offending testimony was unresponsive, and because there was no evidence that applicant's conduct was indignant to the court and interfered with the orderly presentation of the trial, and 2) applicant's state and federal due process rights were violated because the notice of contempt was insufficient. Pursuant to this Court's order, the Honorable Harry Hopkins, presiding *Page 102 judge over the contempt hearing,2 and the Honorable L. Clifford Davis, offended judge, entered responses, findings of fact and conclusions of law. These were in all respects adverse to applicant.
First, the plurality opinion implies that the trial court's order was unclear. This contention is not supported by the record. In truth, several pages of the record are devoted to the trial court's order delineating, in painstaking detail, the areas into which applicant could question. At the repeated behest of applicant, the court clarified that permissible areas of questioning included any deals between the police and the informant, whether cases were pending against the informant, whether cases were dismissed in order to acquire the informant's services, and whether the cases were felonies or misdemeanors or even the degree or class of any offense. However, the court unequivocally refused to permit any specifics of the cases against the informant. After applicant asked a question which arguably invited information regarding the specifics of the informant's offense, the trial court again warned applicant. Outside the presence of the jury, the court repeated again and again the limitations of examination. At that point, the following colloquy took place.
THE 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?
THE 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.
MR. TAYLOR: But I can't go any further than identify the second case as a felony case?
THE COURT: Well, you can't if you intend to follow my instructions. If you don't follow my instructions something is going to happen to you.
MR. TAYLOR: Well, I intend to follow your instructions because I'm going to make a Bill of Exception to preserve where I think your instructions are wrong. But that's what we've got Appellate Courts for.
THE COURT: That's exactly why I'm telling you to make your Bill and move on.
MR. TAYLOR: I'm not trying to argue you into changing your mind, but I just didn't understand that I was not at least entitled to identify the type of felony.
THE COURT: Okay. I'll go over it with you again just in case you did not understand. You may show that he had cases pending. In connection with that you may show whether they are, as you call them, heavy cases, misdemeanors or felonies, or even the degree of those cases. You may show that this officer or someone working with him cut a deal with the witness, and in connection with cutting the deal, to use your term, he cut some slack. You may also elicit testimony that the witness, Hill, did, in response to that slack you had cut him permit — he did do some of what you call informant's work. That's it. And don't cross the line. That's it.
Despite the plurality's characterization to the contrary, I believe that the trial court's order was sufficiently clear.
Next, the plurality finds that applicant cannot be held in contempt for the witness's unresponsive reply. I cannot agree that the witness's remark was unresponsive. A reply is unresponsive if it "goes beyond the scope of the question." 3 Wigmore, Wigmore on Evidence § 785 (3d ed.). For example, where a police officer *Page 103 witness is asked, "What happened to the money?" and the officer replies that the defendant stated "Well, I guess you've got me now," the reply is unresponsive to the question. See Gremmel v. State, 169 Tex.Crim. 508, 335 S.W.2d 614 (1960).
The questioning for which applicant was cited, "Did you confront [the informant] with the method of illegally obtaining those tapes that you thought had occurred? . . . What was that?", was clearly designed to obtain the answer given. Moreover, a review of the record reflects that the testimony was the product of applicant's lengthy and methodical attempt to acquire the prohibited information. When read in context, it is a farse to suggest that applicant was unaware of what the witness would respond. Shortly before the information was elicited, applicant, himself, interjected the prohibited information by asking, "[D]id you have a belief as to whether or not after that point in time that an aggravated robbery had occurred?" Because applicant's question clearly violated the court's order, an objection was registered and the jury was instructed to disregard. After eliciting the response which forms the basis of the instant contempt action, applicant again violated the order yet a third time, despite repeated and specific warnings. Read in the context of the record, it is clear that applicant's question violated the court's order.
The repeated violation of the court's order belies the plurality's inference that applicant was the innocent benefactor of the response. In Koller v. State, 518 S.W.2d 373 (Tex.Cr.App. 1975), this Court was faced with a similar situation. Irrelevant testimony was elicited that the defendant was seen in public with a prostitute. After the jury was instructed to disregard the testimony, the prosecutor again elicited testimony regarding the woman's profession. This Court held that even if the first reference to the woman's profession was "an accidental result of an unresponsive answer, the renewed question cannot be characterized as such."Koller, 518 S.W.2d at 377. In the case at bar, applicant repeatedly violated the court's order. I believe it important to note that the violation for which appellant was held in contempt followed numerous flagrant violations of the court's order and repeated admonishments from the trial court.
Furthermore, applicant's conduct was indignant to and interfered with the orderly presentation and conduct of the trial. The essence of "contempt" is that the conduct obstructs or tends to obstruct the proper administration of justice.Ex parte Jacobs, 664 S.W.2d 360, 364 (Tex.Cr.App. 1984); Ex parte Salfen, 618 S.W.2d 766, 770 (Tex.Cr.App. 1981). Acceding to applicant's numerous requests, the trial court repeatedly held conferences outside the presence of the jury in order to thoroughly and explicitly define the limits of questioning. After which, applicant flagrantly and repeatedly violated the court's order. Applicant's utter disregard for the court's order is chronicled in scores of pages of the record. Applicant repeatedly disrupted the orderly progress of the trial and obstructed the administration of justice. Contrast, Ex parte Pink,746 S.W.2d 758 (Tex.Cr.App. 1988) (where counsel's statement to a police officer witness "in that offense report you got, that I can't get to . . .", did not obstruct the administration of justice).
For these reasons, I respectfully dissent to the plurality opinion.
McCORMICK, P.J., and DAVIS, J., join this opinion.