Ex Parte Arnold

DOUGLAS, Judge

(dissenting).

Relators attack the validity of the judgment holding them in contempt of court and adjudging their punishment at six months’ confinement in the county jail.

On April 6, 1972, relators, accompanied by a third individual whose name was not revealed but who was referred to as “John Doe,” attempted to take pictures of Officer Robert Harden, an undercover agent for the Texas Department of Public Safety. Officer Harden, on the date of the occurrence of the act for which relators were held in contempt, ’had been testifying as the State’s chief witness in a trial being conducted in Criminal District Court No. S. The events constituting the alleged contemptuous conduct occurred as Officers Harden, Floyd and Maxwell were returning to the courtroom following the noon recess. As the three officers stepped from the elevator into the hall outside the court*537room, the unnamed man, “John Doe,” pointed to Officer Harden and said, “That’s the man.” At this point, relator Stein, known also as Stoney Burns, began taking pictures of Officer Harden. When requested not to take pictures, he persisted. As Officer Harden attempted to put his arm in front of his face, Arnold and “John Doe” grabbed Officer Harden’s arms and held them to his side so that Stein could continue to take photographs. The court was immediately informed of the events which had taken place and Arnold, who was seen standing outside the courtroom, was brought before Judge Ed Gossett and held in contempt. Arnold’s motion for new trial was granted and both Arnold and Stein were ordered to appear before the court and show cause as to why they should not be held in contempt.

Initially, relators allege that the affidavit is defective in that the facts of the case do not support a finding of direct but only constructive contempt, because the facts alleged and established occurred neither within the immediate view of the court nor in the presence of the court. They contend that since the facts show constructive contempt only, the affidavit is insufficient because it does not show knowledge on the part of the contemners. The affidavit in question, omitting the formal parts, reads as follows:

“. . . that one Brent LaSalle Stein, John Arnold, and John Doe, hereinafter styled Defendant, heretofore, on or about the 6th day of April A.D.1972, in the County of Dallas and State of Texas, 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. 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.

The affidavit is sufficient to allege contemptuous conduct. A direct contempt consists of words spoken or acts committed in the presence of the court or during its intermissions which tend to subvert, embarrass, or prevent justice. 17 Am.Jur.2d, Contempt, Section 6. The court’s power to effect orderly administration of justice extends beyond the confines of the courtroom. 100 ALR 2d 1409, Section 2 Anno. Trial — Press, Radio, Television. The conduct complained of here occurred in the corridor outside the courtroom and was “therefore” in close enough proximity to be considered as occurring in the presence of the court. See 17 Am.Jur.2d, Contempt, Section 6 and cases cited therein. Generally, contempt is deemed to have been committed in the presence of the court if acts so constituting the contempt were committed in the corridors adjacent to the courtroom or even on the courthouse steps or lawn. See 17 C.J.S. Contempt, § 26 and cases cited therein.

The press has full liberty to obtain material for its publications by any method that it deems best, provided such method is not illegal. It is fully recognized that the general public, which seldom visits a court, can be and should be well served by the newspapers in giving full and accurate accounts of what occurs in and about the courts. However, the court has an inherent right to conduct its work and its ses*538sions without disturbance of any sort. If a court could not guard against disturbance, then it could be pursued by disturbance to a point where it would no longer be able to function. So it is evident that this right to sit and proceed undisturbed is a right necessary to the liberty of the people for whose protection the courts have been created. In re Seed, 140 Misc. 681, 251 N.Y.S. 615 (1931).

Judge Harris, in the case of In re Seed, supra, was dealing with the situation in which a newspaper photographer had taken pictures of prisoners in the corridors against his order. He stated that the taking of pictures of prisoners could lead to riot in the halls and corridors adjoining the court, especially when taken against the desires of the prisoners. Such disturbance could lead to the release or escape of a prisoner. He went on further to state:

“This line of reasoning, that disorders may arise and harm may come from the taking of pictures in the vicinity of the courtroom, does not necessarily confine itself to the taking of pictures of those indicted for crime. Persons interested in civil litigation, either as parties or called as witnesses, have a right to approach the court undisturbed and one can readily see that a picture which compels a litigant or a witness to run a barrier of cameras, with attendant noises, would lead to such parties relinquishing their right to approach the courts, and would result in witnesses being kept away from the court. This court has no doubt that a party to a lawsuit, or a witness, would have a right to object to his picture being taken, and such objection could in the future, as it has sometimes in the past, lead to fisticuffs and similar disturbing occurrences." (Emphasis supplied)

A logical extension of Judge Harris’ reasoning would cover criminal as well as civil cases. The ill sought to be prevented under his decision, “. . . fisticuffs and similar disturbing . . . ” did occur in the present case. Also, while the witness Harden was not kept away from the courtroom by direct means, he was constructively kept away since the evidence shows that his demeanor as a witness was affected. Harden feared that publication of his picture would endanger his life.

Furthermore, the affidavit states that one of the contemnors, “John Doe,” was in the courtroom early in the morning which is sufficient to show that contemnors knew or should have known that all witnesses had been placed under the rule of evidence and as such were under the order of the court. The facts as stated in the affidavit are sufficient to allege constructive contempt as well as direct contempt. The record also reflects that relators appeared before the court with counsel on April 7, 1972, and were instructed by Judge Gossett to appear on April 21, 1972, and show cause why they should not be held in contempt of court.

Next, relators contend that the evidence is insufficient to support the findings of the court.

Officer Harden testified that as he and his fellow officers stepped from the elevator into the hallway, he was greeted by a man who had been in the courtroom earlier that morning listening to the testimony of the trial in which he, Harden, was testifying. He related that after the man greeted him by saying “Hello,” and he returned the greeting, the individual then said, “That’s him.” At that moment, relator Stein took a picture of Officer Harden. Harden continued testifying stating that he told Stein, “I don’t want my picture taken.” After he made the statement, “John Doe” and Arnold approached him from the left and right, respectively. He stated that as he attempted to put his arm in front of his face, both men grabbed his arms and pulled them to his side. He testified that he broke away after a couple of seconds and then asked the three men to remain and speak to the judge. As Officer Floyd started to see if the judge was in his chambers, Arnold stepped in front of him. *539Floyd pushed Arnold to the side and told him that if he interfered again he would be charged with assault.

Officer Harden continued his testimony by testifying as to the effect this incident had on him while he was testifying at the afternoon session. He stated that in his capacity as an undercover agent he had made several cases involving narcotics, and that it would endanger his life for his picture to be published as well as the cases which had not yet been brought to trial. Officer Harden testified that while he was a witness in the afternoon session he was more concerned about the event that had transpired outside the elevator than the testimony he was giving, because if the picture were published in the newspaper, it would have endangered his life and the security of his job not only in the Dallas area but statewide.

Officer Floyd testified that he was the supervising agent of Officer Harden and that in his opinion Harden’s demeanor as a witness was affected by the events which had taken place. He stated that threats had been made on Officer Harden’s life and publication of his picture in an underground newspaper would not only jeopardize his life but would limit his undercover work in Dallas and surrounding areas.

Officer Maxwell then testified substantially the same facts as Officer Harden did.

Next, Emma Parker, an aunt of Travis Wayne Boykin, at whose trial Officer Harden was testifying, testified that she observed a scuffle outside the elevator and observed Officer Floyd push Arnold to the side. She stated that the other officers seemed to be pushing away or trying to push back away from Stein as Stein was attempting to take their pictures, but that she could not remember if “John Doe” was anywhere near Officer Harden.

Travis Boykin testified that he was in the hallway outside the courtroom during the noon recess and that he had observed relators in the hallway. He also stated that Stein had a camera with him and that he heard them discussing taking photographs but that he was not aware of whom. He testified that he observed some scuffling but could not see what was going on, yet he did observe Officer Floyd push Arnold against the wall. Boykin also related that Arnold continued to state, “Here is my press card,” “Am I under arrest,” or words to that effect and that at no time did he see anybody hold anybody. His wife, Helen Boykin, testified and gave substantially the same version as her husband did.

Arnold testified that he was the news editor for “Iconoclast,” a news publication by Reliable Sources, Incorporated. He testified that he and Stein had been called by an unidentified individual who later turned out to be “John Doe,” and were told that they might be able to get a picture of Officer Harden. Arnold stated that he was shoved by Officer Floyd but at no time did he grab Officer Harden. Stein also testified that at no time during the picture episode did anyone attempt to restrain Harden but that Harden had grabbed his own arm to prevent him from taking pictures.

The evidence presented is sufficient to support a finding of contempt. Generally, those whose conduct tends to bring the authority and administration of law into disrespect or disregard, interferes with or prejudices parties or their witnesses during a litigation, or otherwise tends to impede, embarrass or obstruct the court in discharge of its duties are guilty of contempt. Ex parte Norton, 144 Tex. 445, 191 S.W.2d 713; 12 Tex.Jur.2d, Contempt, Section 12. The facts here show that not only was the life of one of the State’s witnesses endangered, but that such witness was a critical witness who should not have been interfered with in any manner while the trial was being conducted.1 Interference of the *540nature involved here is not only detrimental to the trial in process but also impedes the court in the administration of justice. See Ex parte Aldridge, 169 Tex.Cr.R. 395, 334 S.W.2d 161.

I would hold that the orders of contempt are valid and that the relief sought under the application for writ of habeas corpus should be denied.

. Relator Arnold and Doug Baker, Jr., pub-lisliers of the “Iconoclast” both testified that the publication of Officer Harden’s pictures in their opinions would not endan*540ger his life. Yet, the article concerning Officer Harden, which appears in the record, contains a statement by Wayne Boykin to the effect that Berclay McClinton, who allegedly kept Officer Harden supplied with narcotics, might possibly lose her life because it may not be known to all that she was unaware of Officer Harden’s undercover activities. Also, Gene L. Mitchell, a reporter of WFAA television station, called as a witness by relators, testified that he would not allow a picture of an undercover agent to be shown on his television station without the agent’s consent. Charles Davis Coleman, Dallas Bureau Chief for Channel 11, KTUT television station, also called as a witness by relators, testified essentially the same as Mitchell.