(concurring).
Petitioners have each applied to this Court for a writ of habeas corpus, attacking the validity of the judgment in Criminal District Court No. 5 of Dallas County, holding them in contempt of court and adjudging their punishment at six months confinement in the county jail and a $500.-00 fine, each.
I find myself unable to concur in the reasoning of either the majority opinion or *535the dissenting opinions, and therefore find it necessary to express my own opinion on the matters raised by the application before this Court.
The affidavit upon which the order to show cause issued recites that petitioners:
“ . . . did unlawfully interfere with and intimidate a sworn witness to wit: Robert Hardin, in a Criminal case then being tried, to wit, The State of Texas v. Travis Wayne Boykin. The Court having placed the said Robert Hardin under the Rule of Evidence and Robert Hardin having previously testified with expectation of again testifying, the Court released the jury for lunch. At approximately 1:15 P.M., Robert Hardin and two other witnesses returned to the third floor by using the elevator. As Robert Hardin exited the elevator and turned into the hall leading to the Court, John Doe, previously in Court when Robert Hardin testified directed the attention of John Arnold and Brent Stein to Robert Hardin. John Doe and John Arnold physically restrained Robert Hardin from turning or shielding his face from the camera that Brent Stein was taking his picture with. Despite Robert Hardin’s attempt to avoid having his picture taken and to leave he was physically restrained by John Doe, John Arnold, and Brent Stein and more pictures were taken. . . . ”
Following notice and hearing, the court entered the following findings of fact and conclusions of law:
“[1] The Court finds that the defendant John D. Arnold and one John Doe apprehended State Narcotic Agent, Robert Harden in the hall outside of this courtroom and held him while defendant, Brent Stein took pictures of the said Robert Harden.
“[2] The Court further finds that Agent Robert Harden was the State’s major witness in the trial of a number of narcotic cases against one Travis Wayne Boykin, then going on in this Court.
“[3] The Court further finds that the defendants, John D. Arnold, Brent Stein and John Doe willfully sought to intimidate a State’s material witness, to wit, Robert Harden, who was and is an under cover agent for the Texas Department of Public Safety.
“[4] The Court further finds that the defendants are guilty of knowingly endangering the life of the State’s witness, Robert Harden; that the defendants are guilty of interfering with the authority and the jurisdiction of this Court.
“[5] The Court further finds that the defendants are guilty of conduct tending to belittle, interrupt, interfere with and embarrass the administration of justice in this Court and the administration of justice generally.
“The Court therefore holds the defendants John D. Arnold and Brent Stein guilty of both constructive and actual contempt.”
In Vogler, Ex parte, 110 Tex.Cr.R. 579, 9 S.W.2d 733 (1928), it was stated:
“The Court cannot make contempt of that which is not contempt, and if, ‘upon a review of the whole record, it appears that a judgment unwarranted by law was entered, the party thus placed in contempt will be released under the writ of habeas corpus.’ Ex parte Duncan, [42 Tex.Cr.R. 661] 62 S.W. [758] 761. . When the facts do not constitute contempt, the court is without authority to enter the particular judgment.”
And on motion for rehearing therein:
“Our courts in Texas have gone so far as to hold that, on habeas corpus testing the soundness of contempt judgments, the court may go into the truth of the recitals of the judgment, and that its recitals are not conclusive on the question of the authority of the court to render it, *536and also that the recital of facts in such judgment adds nothing to its sanctity.”
The fourth paragraph of the court’s findings states that petitioners “are guilty of knowingly endangering the life of the State’s witness.” There was no allegation of such in the affidavit by which petitioners received notice of what they would be required to defend against; there is no evidence that the complained of conduct did endanger the life of the State’s witness; and even if such had been the case, unless there were proof that such action was done with the intent to influence the witness’ testimony at the pending trial, I fail to see how such conduct would constitute intimidation of a sworn witness in contempt of court.
Turning now to the other findings, the allegation in the affidavit is that petitioners “did unlawfully interfere with and intimidate a sworn witness to wit: Robert Hardin, in a Criminal case then being tried, to wit, The State of Texas vs. Travis Wayne Boykin.” I do not see how any such contempt as herein alleged can he proven without proving that the accused acted with the intent to influence the witness to alter or withhold testimony or in some other way fail to carry out what was expected of him as a witness in the pending trial. See and compare Art. 428a, Vernon’s Ann.P.C. Intimidation of a witness could be contemptuous as such only if the individual is intimidated in his capacity as a witness.1 Furthermore, it is not the effect upon the witness, but the intent of the intimidator, which is controlling. See also 12 Tex.Jur.2d, Contempt, Sec. 47.
In the instant case there is no evidence that either of the petitioners before this Court had the intent to interfere with or intimidate Harden in his capacity as a witness in the trial alleged on the day of the alleged acts, nor is there any such finding. It is therefore my opinion that the contempt alleged was not shown and the relief sought should be granted.
ONION, P. J., also joins in this concurring opinion.. Consider Y, a court stenographer, discovering that X, who happens to be a witness, has been secretly meeting with Y’s spouse, and during a recess Y threatens to kill X if X meets Y’s spouse again. I hardly see how this would be contempt of court if the trial at which X is testifying is unrelated to the subject of the threat, and this regardless of the fact that Y knows X is a witness, and regardless of the effect upon X’s mental state and composure as a witness. The intent to interfere with or intimidate X in Ms capacity as a witness is lacking.