no contempt where defense attorney was 10 to 20 minutes late for docket call; the court noted that if the case had been set for trial that the attorney’s absence would have only delayed it by a few minutes
How later courts described this case
- no contempt where defense attorney was 10 to 20 minutes late for docket call; the court noted that if the case had been set for trial that the attorney’s absence would have only delayed it by a few minutes
- contempt improper for minor tardiness caused by conflicting settings in courts of equal jurisdiction
- no contempt where the attorney was 2.5 hours late for trial and the court was waiting for him where he was involved in another ongoing trial; the court determined that there was not the slightest contempt of or disrespect to the lawful authority of the court that found him in contempt
- contempt not justified when counsel absent due to trial in another jurisdiction and withdrawal of local counsel
Written by the judges who cited it.
The opinion
WR-82,944-01
COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
Transmitted 3/4/2015 12:19:00 AM
Accepted 3/4/2015 4:15:39 PM
NO._____________________________ ABEL ACOSTA
CLERK
IN THE TEXAS RECEIVED
COURT OF CRIMINAL APPEALS
COURT OF CRIMINAL APPEALS 3/4/2015
ABEL ACOSTA, CLERK
On appeal from the 207th District Court
of Comal County, Texas
PETITION FOR WRIT OF HABEAS CORPUS AND MOTION TO STAY JUDGMENT
CHRISTOPHER L. GRAHAM, Applicant, files the petition for writ of habeas corpus and in
support of this petition show the Court the following:
IDENTITY OF THE PARTIES
1. Petitioner, in the trial court is Christopher Graham, hereinafter referred to as “Graham”
2. Petitioner is proceeding Pro Se in this matter, State Bar number 24047549.
3. Respondent, in the trial court is the State of Texas
4. Respondent’s counsel is the Office of the District Attorney Jennifer Tharp; specific counsel
handling this habeas corpus has not been designated from the office of the district attorney or
is unknown at this time by Petitioner.
TABLE OF CONTENTS
5. Index of Authorities 2
6. Statement of the Case 3
7. Statement Regarding Oral Argument 4
8. Issues Presented 4
9. Statement of Facts 5
PETITION FOR WRIT OF HABEAS CORPUS AND MOTION TO STAY JUDGMENT
1
10. Summary of the Argument 7
11. Statement of Jurisdiction 8
12. Standard of Review 8
13. Argument 10
14. Prayer 18
15. Appendix 21
INDEX OF AUTHORITIES
a. Aguilar v. State, 621 S.W.2d 781 (Tex. Crim. App. 1981)
b. Brown v. United States, 356 U.S. 148, 153, 78 S. Ct. 622, 2 L. Ed. 2d 589 (1958)
c. Ex parte Acker, 949 S.W.2d 314, 316 (Tex.1997)
d. Ex Parte Barnett, 600 S.W.2d 252 (Tex. 1980)
e. Ex parte Butler, 372 S.W.2d 686, 687 (Tex. Crim. App. 1963)—
f. Ex parte Camara, 628 S.W.2d 803, 804 (Tex. Crim. App. 1982)
g. Ex Parte Cardwell, 416 S.W.2d 382 (Tex. 1967).
h. Ex parte Curtis, 568 S.W.2d 363, 366–367 (Tex. Crim. App. 1978)
i. Ex parte Daniels, 722 S.W.2d 707, 709 (Tex.Crim.App. 1987
j. Ex parte Durham, 921 S.W.2d 482, 485 (Tex.App.—Corpus Christi 1996, orig. proceeding)
k. Ex parte Durst, 148 S.W.3d 496, 499 (Tex. App., Houston [14th Dist.] 2004, pet. ref’d)
l. Ex parte Hiester, 572 S.W.2d 300, 303 (Tex.1978)
m. Ex Parte Hightower, 877 S.W.2d 17 (Tex. App. Dallas 1994), writ dismissed w.o.j., (July 28,
1994)
n. Ex parte Jacobs, 664 S.W.2d 360, 364 (Tex. Crim. App. 1984)]
o. Ex parte Keene, 909 S.W.2d 507, 508 (Tex.1995);
p. Ex parte Krupps, 712 S.W.2d 144, 149 (Tex. Crim. App. 1986), cert. denied, 479 U.S. 1102
(1987)
q. Ex Parte Laymon, 679 S.W.2d 532, 534 (Tex.App.—Houston [1st Dist.] 1984, orig. proceeding)
r. Ex parte Moorehouse, 614 S.W.2d 450, 451 (Tex. Crim. App. 1981)
s. Ex parte Occhipenti, 796 S.W.2d 805, 809 (Tex.App.—Houston [1st Dist.] 1990, orig.
proceeding)
t. Ex parte Pink, 746 S.W.2d 758, 762 (Tex. Crim. App. 1988)
u. Ex parte McDonald, 852 S.W.2d 730, 735 (Tex. App., San Antonio 1993)
v. Ex parte Murphy, 669 S.W.2d 320, 322 (Tex. Crim. App. 1984), cert. denied, 469 U.S. 823
(1984)
w. Ex parte Reese, 23 S.W.3d 54, 56 (Tex.App.—Austin 2000, pet. ref’d).
x. Ex parte Salfen, 618 S.W.2d 766, 769 (Tex. Crim. App. 1981)
y. Ex parte Shields, 779 S.W.2d 99, 101 (Tex.App.—Houston [1st Dist.] 1989, orig. proceeding)
z. Ex parte Sproull, 815 S.W.2d 250, 250 (Tex.1991).
aa. Ex parte Strickland, 724 S.W.2d 132, 134 (Tex.App.—Eastland 1987, orig. proceeding)
bb. Ex Parte Sweeney, 628 S.W.2d 855 (Tex. App. Fort Worth 1982).
cc. Ex parte Taylor, 807 S.W.2d 746, 748 (Tex. Crim. App. 1991)
PETITION FOR WRIT OF HABEAS CORPUS AND MOTION TO STAY JUDGMENT
2
dd. Ex parte Thompson, 508 S.W.2d 624, 625 (Tex. Crim. App. 1974)
ee. Ex parte Trillo, 540 S.W.2d 728, 731 (Tex. Crim. App. 1976), overruled on other grounds,
ff. Ex Parte Werblud, 536 S.W.2d 542 (Tex. 1976); In re Hammond, 155 S.W.3d 222 (Tex. App. El
Paso 2004)
gg. In Re Application of Mackay, 35 P.2d 385 (Cal. 1934)
hh. In re Brown, 114 S.W.3d 7, 12-13 (Tex.App.—Amarillo 2003, orig. proceeding).
ii. In re Farquhar ,492 F2d 561 (D.C. Cir. 1973)
jj. In re Greene, 213 F.3d 223 (5th Cir., 2000)
kk. In re Hammond, 155 S.W.3d 222 (Tex. App. El Paso 2004)
ll. In re Monroe, 532 F.2d 424, 425–426 (5th Cir. [Tex.] 1976)
mm. In re Office of the Atty. Gen., ___ S.W.3d ___ (Tex.2013) (No. 11-0255; 3-8-13)
nn. Lee v. State, 799 S.W.2d 750, 752-753 (Tex. Crim. App. 1990
oo. Roselle v. State, P.2d 486 (Okla. Crim. App. 1973)
pp. Rowe v. Moore, 756 S.W.2d 117 (Tex. App. Houston 1st Dist. 1988
qq. Taylor v. District Court for the Fourth Judicial Dist., 434 P.2d 679 (Alaska 1967)
rr. Williams v. Estelle, 4566 F.Supp. 1376 (S.D. Tex. 1983
ss. Wise v. Commonweath, 34 S.E. 453 (Va. 1899)
tt. Tex. Cod. Crim. Proc. Art. 4.04 § 1
uu. Tex. Code. Crim. Proc. Art. 11.01
vv. Tex. Code Crim. Proc. Art. 11.23
ww. Tex. Code Crim. Proc. Art. 17.15(1), (2), (3), (4), (5)
xx. Tex. Const. Art. 5 § 5;
yy. Tex. Fam. Code §157.163
zz. Tex. Gov’t Code Sec. 21.002(d)
STATEMENT OF THE CASE
16. On 2/25/2014, State v. Chelsie Chenoweth, case number CR2013-366 was scheduled for
arraignment (CR Supplement 1:20) and the Court issued its show cause order against Graham
claiming that Graham arrived tardy to court . (CR 1:16)
17. On 3/10/2014, Graham filed his response contesting the show cause order and requesting
among other things a continuance of the show cause hearing, a court appointed attorney, a
personal recognizance bond, and that an administrative law judge be appointed in the case of
a finding of contempt. (CR Supplement 1:5-6)
18. The Court rescheduled the 3/13/2014 show cause hearing date to 4/8/2014 (CR Supplement
1:9)
PETITION FOR WRIT OF HABEAS CORPUS AND MOTION TO STAY JUDGMENT
3
19. On 4/8/2014 the court made a finding of contempt against Graham in case number CR2013-
366. (CR 1:24).
20. On 4/8/2014, Graham was committed to the Comal county jail (App. 1) and released after
payment of a $5,000 cash appeal bond (App. 2).
21. 4/21/2014, Graham filed notice of appeal (CR 1: 32) and a motion for new trial (CR 1:35).
22. 4/28/2014, the Court denied Graham’s motion for new trial (CR 38).
23. 5/5/2014, Graham filed a request for a free transcript (CR Supplement 1:21).
24. 9/2/2014, the State filed its contest of Graham’s request for free transcript and affidavit of
indigence (CR Supplement 1:23)
25. 9/23/2014 a hearing was held on Graham’s request for a free transcript and affidavit of
indigence, and the Court denied Graham’s request to proceed as indigent on appeal (CR 61)
26. 10/2/2014 Graham filed its motion challenging the order sustaining the State’s contest. (CR
1:78).
STATEMENT REGRADING ORAL ARGUMENT
27. Oral argument is requested by Graham at this time.
ISSUES PRESENTED
28. Is a finding of contempt against an attorney wrong where: 1)the attorney appeared at
court a few minutes late after having been delayed by traffic and jail transport delays after having been
conducting a client interview in a nearby jail during the recess for a client who was scheduled for jury
trial in a few days; 2) where the court issuing the show cause order had gone on a lunch break for more
than an hour and when the attorney and client had completed the documentation for the disposition of the
case and where the court knew that the attorney and the client had been waiting for several hours to
dispose of the case; 3) where the purpose of the scheduled hearing for client had been completed by
PETITION FOR WRIT OF HABEAS CORPUS AND MOTION TO STAY JUDGMENT
4
attorney; 4) where the court singled out attorney for punishment since the court never issued show cause
orders to other attorneys tardy by a few minutes to court; 5) where there was no evidence of willful intent
to disregard the Court’s order, 6) where there was no admonition to the attorney that a failure to return at
the designated time would result in contempt; 7) where the finding of contempt was made by an
administrative judge where there was no previous finding of contempt by the trial judge; and 8) where the
Court did not advise or afford the alleged contemnor with the right to counsel?
STATEMENT OF FACTS
29. Graham is currently being illegally restrained as a result of the actions of administrative law
Judge Douglas Shaver.
30. The basis of the restraint is the contempt order issued by Judge Shaver on 4/8/2014 (CR 1:24)
31. On 2/12/2014, Graham called the court to request that the case State v. Chelsie Chenoweth,
be scheduled for court on 2/13/2014. Graham was told by the court coordinator that the case
had been set for hearing. (RR 2:43 l. 25, RR 2:44 l. 1-8)
32. On 2/13/2014, Movant appeared at court expecting to be able to resolve this case and was
told that the Court had erred and that case had not been added to that day’s docket. Court
personnel told Graham to return to court on 2/25/2014. (RR 2:43 l. 25, RR 2:44 l. 1-8)
33. On 2/25/2014, the case State v. Chenoweth, case number 2013CR366 had been set for
arraignment hearing. (CR Supplement 1:20). Graham arrived at the court shortly before 9
am, but was in the hallway talking to a client on the phone. (RR 2:47 l. 21, RR 2: 48 l. 1)
34. Client Chenoweth had already checked with the court (RR 2:30 l.15) and shortly thereafter, at
around 9 am, Graham announced to the Court that he was prepared to proceed on the
arraignment hearing (RR 2: 47 l. 11-18).
PETITION FOR WRIT OF HABEAS CORPUS AND MOTION TO STAY JUDGMENT
5
35. Shortly before 10 am and after a few minutes of negotiation with the prosecutor in the case,
arraignment documents and plea documents were signed and prepared by client Chenoweth
indicating that she understood her charges in the case and the plea bargain terms. (RR 2:44 l.
16-22).
36. For several hours, Graham and client Chenoweth waited for the Court to hear and enter the
plea in the case all to no avail. (RR 2:44 l.25, RR 2:45 l. 1-4).
37. Movant had to bring the Chenoweth case to the Court’s attention several times that the case
was ready for plea and ready to be disposed of. (RR 3:48 l. 1-10); (RR 3:62 l. 18-22)
38. The Court took a break for an extended period and did not hear the plea for Graham’s client.
Around 11:45am, the Court entered recess until 1:15pm for lunch. (RR 3:63 l. 2-9).
39. After Court resumed the Court still did not hear Graham’s client’s plea (RR 3: 74 l. 11-14).
40. Before breaking for lunch the Court indicated that before Graham’s plea was to be heard, that
there would be several contested cases that the Court would hear before it considered the
Chenoweth plea. (RR 3:62 l. 5-10) ; (RR 3:62 l. 20-21); (RR 3:63 l. 5-6); (RR 3:62 l. 13-21).
41. During the recess, Graham went to the Bexar county jail in order to talk briefly with a client
concerning his upcoming jury trial. (RR 3:45 l. 5-14).
42. Due to heavy traffic and delays in transporting inmates in the Bexar county jail, Graham was
delayed in coming back to the court by a few minutes. Graham arrived in the courtroom at
approximately 1:35pm. (RR 3:54 l. 4-8).
43. When Graham entered the courtroom client Chenoweth had been released and the trial Court
presented him with a show cause order, alleging that attorney Graham was in contempt of
court. (RR 2:46, l. 4-7).
PETITION FOR WRIT OF HABEAS CORPUS AND MOTION TO STAY JUDGMENT
6
44. The show cause hearing was scheduled for 3/13/2014 (CR 1:16), however Graham filed a
request for continuance of the hearing because he was scheduled for court in another
jurisdiction on the same day. (CR Supplement 1:4-6)
45. No contempt finding or order was ever made or entered at the show cause hearing of
3/13/2014 (CR Supplement 1:21). The case was referred to administrative law judge Doug
Shaver for hearing on 4/8/2014. (CR Supplement 1:7).
46. On 4/8/2014, Graham was wrongly 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. (CR Supplement 1:12)
47. The sentence assessed against Graham was 15 days in the Comal County jail and a $300 fine
(CR Supplement 1:12). Graham’s bond was set at $5,000 cash (CR Supplement 1:15).
Graham paid the $5,000 (five thousand dollar) cash bond in order to secure his release. (CR
Supplement 1:16).
SUMMARY OF ARGUMENT
48. The trial court 1) failed to provide Graham with his right to an attorney 2) failed to
inquire into his qualification for a court appointed attorney when such a request was made 3) failed to
inform Graham about his right to a jury trial 4) failed to make a contempt finding before transferring the
case for hearing before an administrative law judge 5) failed to evaluate the evidence properly in finding
contempt since there was no evidence of intentional disrespect to the Court or actual delay in the
administration of justice 6) imposed a draconian punishment on Graham of 15 days incarceration which
is a violation of his due process rights and 7) imposed a unsupportable amount for an appeals bond when
it was not substantiated by the evidence. Consequently, Graham’s contempt finding must be reversed
PETITION FOR WRIT OF HABEAS CORPUS AND MOTION TO STAY JUDGMENT
7
STATEMENT OF JURISDICTION
46. There is no right to an appeal from an order of contempt. The proper remedy for testing a
contempt order is to collaterally attack the judgment by filing an original application for writ of habeas
corpus, Ex parte Moorehouse, 614 S.W.2d 450, 451 (Tex. Crim. App. 1981). Since the function of a writ
of habeas corpus is to secure a person’s release from confinement or restraint, the remedy may be used
only when a court has entered an order restraining the contemnor , see Tex. Code. Crim. Proc. Art. 11.01.
However, this does not mean that the contemnor must actually be confined while awaiting the disposition
of the writ of habeas corpus. It is possible to obtain a stay of the contempt order while seeking habeas
corpus relief, see Ex parte Camara, 628 S.W.2d 803, 804 (Tex. Crim. App. 1982). A person free on bond
is also considered to be in custody for habeas corpus purposes, see Ex parte Trillo, 540 S.W.2d 728, 731
(Tex. Crim. App. 1976), overruled on other grounds, Aguilar v. State, 621 S.W.2d 781 (Tex. Crim. App.
1981). The Court of Criminal Appeals has constitutional and statutory power to issue writs of habeas
corpus in the exercise of its original jurisdiction, Tex. Const. Art. 5 § 5; C.C.P. Art. 4.04 § 1. Therefore,
it is appropriate to file a petition for writ of habeas corpus challenging a criminal contempt order in the
Court of Criminal Appeals.
STANDARD OF REVIEW
47. Courts are expected to guard against confusing acts that offend their sensibilities with acts
that are actually disrespectful or that obstruct the administration of justice, see Brown v. United
States, 356 U.S. 148, 153, 78 S. Ct. 622, 2 L. Ed. 2d 589 (1958). The act itself must be shown to be
intentionally disrespectful; whether the statement offended the court is not the test. Contempt is not
to be presumed; on the contrary, it is presumed not to exist, Ex parte Taylor, 807 S.W.2d 746, 748
(Tex. Crim. App. 1991). Therefore, the fact that conduct may be irritating or exasperating does not
necessarily render it contemptuous, see Ex parte Pink, 746 S.W.2d 758, 762 (Tex. Crim. App. 1988).
To sustain contempt proceedings, the order disobeyed must specifically command or order the
PETITION FOR WRIT OF HABEAS CORPUS AND MOTION TO STAY JUDGMENT
8
individual to do or not to do some act or acts. The order must provide the person with specific and
definite notice of the acts the person must or must not perform in order to avoid being held in
contempt, Lee v. State, 799 S.W.2d 750, 752-753 (Tex. Crim. App. 1990). Furthermore, failure to
appear in court due to conflicting court settings generally is not appropriate, see Ex parte Butler, 372
S.W.2d 686, 687 (Tex. Crim. App. 1963)—contempt improper for minor tardiness caused by
conflicting settings in courts of equal jurisdiction.
48. A writ of habeas corpus may be issued in cases in which the court had no power to issue the
contempt order, as well as cases in which the power existed but it was exercised in a manner or degree not
authorized by law Tex. Code Crim. Proc. Art. 11.23. Thus, a contemnor can challenge the court’s
jurisdiction to render a contempt judgment as well as the lawfulness of the way in which it enforced its
jurisdiction, see Ex parte Salfen, 618 S.W.2d 766, 769 (Tex. Crim. App. 1981).
49. A contemnor may also challenge the sufficiency of the evidence to support the contempt order.
When reviewing the basis for the contempt order, the Court of Criminal Appeals will view the evidence in
the light most favorable to the order, see Ex parte Murphy, 669 S.W.2d 320, 322 (Tex. Crim. App. 1984),
cert. denied, 469 U.S. 823 (1984). However, a contempt order may be set aside if the Court determines
that the lower court had no reasonable basis for entering a contempt order, see Ex parte Butler, 372
S.W.2d 686, 687 (Tex. Crim. App. 1963). A court will issue a writ of habeas corpus if the order
underlying the contempt is void or if the contempt order itself is void either because the order was beyond
the power of the court or because it deprived the contemnor of his or her liberty without due process of
law. Ex Parte Barnett, 600 S.W.2d 252 (Tex. 1980). The Court will take into consideration the entire
record to determine whether due process was accorded. Ex Parte Cardwell, 416 S.W.2d 382 (Tex. 1967).
The Court will decide whether the trial court’s contempt finding is so completely without evidentiary
support that it deprives the relator of liberty without due process of law. In re Hammond, 155 S.W.3d 222
PETITION FOR WRIT OF HABEAS CORPUS AND MOTION TO STAY JUDGMENT
9
(Tex. App. El Paso 2004); Ex Parte Hightower, 877 S.W.2d 17 (Tex. App. Dallas 1994), writ dismissed
w.o.j., (July 28, 1994).
50. In reviewing the trial court’s application of the law to the facts in a contempt proceeding, the
appellate court is to apply the same standard used in original mandamus proceedings for review of a trial
court’s application of the law. Ex Parte Hightower, 877 S.W.2d 17 (Tex. App. Dallas 1994), writ
dismissed w.o.j., (July 28, 1994). The Appellate court reviews the trial court’s determination of the legal
principles controlling its ruling with less deference than it reviews its factual findings. A trial court has
no discretion in determining what the law is or in applying the law to the facts, and a trial courts clear
failure to analyze or apply the law correctly is an abuse of discretion. Ex Parte Hightower, 877 S.W.2d 17
(Tex. App. Dallas 1994), writ dismissed w.o.j., (July 28, 1994).
ARGUMENT
a. The contempt finding must be overturned because Graham was not afforded an
attorney at the contempt hearing.
51. Graham was not afforded the right to an attorney. The court must inform a pro se party facing
incarceration for indirect contempt (whether civil or criminal) of the right to an attorney. Ex parte Acker,
949 S.W.2d 314, 316 (Tex.1997); Ex parte Strickland, 724 S.W.2d 132, 134 (Tex.App.—Eastland 1987,
orig. proceeding); see Tex. Fam. Code §157.163 see, e.g., Ex parte Hiester, 572 S.W.2d 300, 303
(Tex.1978) (trial court could not hold contempt hearing when contemnor’s attorney was delayed in
federal court); see also Ex parte Occhipenti, 796 S.W.2d 805, 809 (Tex.App.—Houston [1st Dist.] 1990,
orig. proceeding) (contempt order not required to include recitation that contemnor knowingly and
intelligently waived right to counsel). Furthermore, if the pro se party facing incarceration is indigent, the
court must inform the party of the right to a court-appointed attorney. Ex parte Keene, 909 S.W.2d 507,
508 (Tex.1995); Ex parte Strickland, 724 S.W.2d at 135. Graham in his Response to Show Cause Order
made a request for a court appointed attorney (CR Supplement 1:5). The Court summarily denied the
PETITION FOR WRIT OF HABEAS CORPUS AND MOTION TO STAY JUDGMENT
10
request and refused to conduct a hearing into Graham’s indigency (RR 2:5, l. 6-11). Such failure is a
violation of Applicant’s due process rights.
b. Graham was not advised of his right against self-incrimination at the contempt hearing
before he testified at the contempt hearing
52. Graham was not notified by the Court of his right against self-incrimination. A party facing
incarceration for criminal contempt must be notified of the right against self-incrimination if the
contemnor was compelled to testify in a criminal proceeding. See In re Brown, 114 S.W.3d 7, 12-13
(Tex.App.—Amarillo 2003, orig. proceeding). The Court did not provide any notification to Graham of
his rights against self-incrimination. Such failure was a violation of Applicant due process rights. (RR
2:42 l. 22-24, RR 2:43 l. 2-10).
c. Graham was not afforded a right to a jury trial when he was faced with possible
punishment over 6 months at the contempt hearing
53. Graham was entitled to a jury trial. A person accused of contempt has a right to the jury trial if
the alleged offense is criminal rather than civil; constructive rather than direct, and serious rather than
petty; that is where the possible punishment exceeds 6 months imprisonment. Ex Parte Werblud, 536
S.W.2d 542 (Tex. 1976); In re Hammond, 155 S.W.3d 222 (Tex. App. El Paso 2004). Criminal contempt
is punitive. The purpose of a criminal contempt order is to punish the contemnor for some act that
affronted the dignity and authority of the court. Ex parte Werblud, 536 S.W.2d at 545; Ex parte Reese, 23
S.W.3d 54, 56 (Tex.App.—Austin 2000, pet. ref’d). In contrast to civil contempt, compliance with the
court’s criminal contempt order will not relieve the contemnor from being punished for her past
acts. See Ex Parte Laymon, 679 S.W.2d 532, 534 (Tex.App.—Houston [1st Dist.] 1984, orig.
proceeding). An order for criminal contempt will specify a certain amount of time that the contemnor
must spend in jail. See In re Office of the Atty. Gen., ___ S.W.3d ___ (Tex.2013) (No. 11-0255; 3-8-13).
Indirect, or constructive, contempt is committed outside the presence of the court. Ex parte Durham, 921
PETITION FOR WRIT OF HABEAS CORPUS AND MOTION TO STAY JUDGMENT
11
S.W.2d 482, 485 (Tex.App.—Corpus Christi 1996, orig. proceeding) (disobeying discovery orders); Ex
parte Shields, 779 S.W.2d 99, 101 (Tex.App.—Houston [1st Dist.] 1989, orig. proceeding) (disobeying
injunctive order); see also In re Reece, 341 S.W.3d at 367 (perjury committed during deposition is
indirect contempt if perjury obstructs court’s performance of its duties). Indirect contempt requires
testimony or documentary evidence to establish the contemptuous conduct. Ex parte Daniels, 722
S.W.2d 707, 709 (Tex.Crim.App. 1987).
54. The contempt order in this case specified a certain number of days of incarceration of Graham,
thus this is an instance of criminal contempt. (CR 1:24) This case involves a case of constructive
contempt because the circumstances of the time of arrival of Graham were outside of the presence of the
court and had to be determined by testimony during a contempt hearing. (RR 2:43; where Graham
testifies to circumstances of delay in arriving at court). Graham, however, was faced with several
allegations of how his behavior was alleged to have been contemptuous 1) a failure to arrive exactly at 9
am on 2/25/2014; 2) a failure to return to court at 1:15 pm on 2/25/2014, 3) a failure to appear in court at
the 3/13/2014 show cause hearing and 4) and alleged false statements in the Response to Courts Order to
Show Cause. (CR 1:19-21). If the allegations would have been proven to be true, the Court could have
elected to run the sentences consecutively and Graham would have been exposed to a sentence longer
than 6 months. As a result the Court was wrong when it failed to inform and allow Graham to exercise
his right to have a jury trial. Instead the trial court scheduled the case to be heard before Judge Shaver,
(CR Supplement 1:7). A party facing incarceration for criminal contempt must be notified of the right to
a jury trial if the contemnor was subject to “serious” punishment. Ex parte Sproull, 815 S.W.2d 250, 250
(Tex.1991).
d. This case was illegally transferred to be heard by an administrative law judge when
there had been no contempt finding by the trial court
55. The trial court illegally referred the case against Graham to an administrative law judge without
following protocol for such transfer. In order to invoke the mandatory requirement for a trial court to
PETITION FOR WRIT OF HABEAS CORPUS AND MOTION TO STAY JUDGMENT
12
refer contempt proceedings to the presiding judge of the administrative region in which the alleged
contempt took place 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, Tex. Gov’t Code Sec. 21.002(d). There was no show cause hearing that was conducted on
3/13/2014; no order of contempt was ever entered finding Graham guilty of contempt by the trial court.
(CR Supplement 1:21) Yet the court still referred the case to be heard by administrative judge Douglas
Shaver. (CR Supplement 1:7). The illegal transfer violated the Tex. Gov’t Code Sec. 21.002(d) and
Graham’s due process rights and therefore Shaver’s contempt order must be reversed.
e. The $5,000 cash appeal bond and punishment were not supported by any evidence in
the record
56. There was no evidence to support such a high bail amount; Graham should have been afforded a
personal recognizance bond. The Code of Criminal Procedure requires that bail be set sufficiently high to
ensure the defendant’s appearance, but not so high as to be an instrument of oppression Tex. Code Crim.
Proc. Art. 17.15(1), (2); Ex parte McDonald, 852 S.W.2d 730, 735 (Tex. App., San Antonio 1993). In
setting this amount, the official should consider the nature of the offense and the circumstances under
which it was committed, Tex. Code Crim. Proc. Art. 17.15(3); The risk of flight must also be evaluated in
light of reasonable conditions of bond that diminish any risk of flight. Ex parte Durst, 148 S.W.3d 496,
499 (Tex. App., Houston [14th Dist.] 2004, pet. ref’d); The future safety of the victim of the alleged
offense and the community must also be considered in setting the bail amount Tex. Code Crim. Proc. (5).
The official setting bail may consider any criminal record the defendant may have, see Ex
parte Thompson, 508 S.W.2d 624, 625 (Tex. Crim. App. 1974)]. The defendant’s ability to make bail is
another factor to be considered in setting the amount Tex. Code Crim. Proc. Art. 17.15(4). None of these
factors were considered by Judge Shaver in setting the $5,000 cash bond in this case. (RR 2:73 l. 11-25);
(RR 2:72 l.1-7). A $5,000 cash bond for alleged tardiness to court by Graham is completely
PETITION FOR WRIT OF HABEAS CORPUS AND MOTION TO STAY JUDGMENT
13
disproportionate to the alleged offense. (CR Supplement 1:15). There was no evidence presented that
Graham was a flight risk. There was no identifiable “victim” of the alleged offense and there was
certainly no evidence that there would be any possible future harm to an alleged “victim”. Graham does
not have, nor is there any evidence that Graham has any prior criminal history. Furthermore, the Court
did not take into consideration Graham’s ability to make bail. When there is an accusation of contempt
against an officer of the court, the officer of the court is entitled to a personal recognizance bond. Tex.
Gov’t Code Sec. 21.002(d). There was no evidence elicited that should have changed that requirement
during the appeal of this case. The Court’s appeal bond setting in this case was comparable to Graham
being charged with an aggravated felony.
57. Moreover, punishment of 15 days assessed in this case was draconian, considering that Movant is
an officer of the court and has other obligations in other courts. The Court could have and should have
considered other alternatives to confinement, such as a fine, community service, house arrest or reporting
to confinement on weekends, or work release to name a few. Such a high bail amount and such
disproportionate punishment assessed by the trial court violated Graham’s due process rights.
f. When it reset the case to 1:15pm, the Court did not specify that failure to comply for
any reason would be grounds for contempt
58. The Court’s instruction does not provide notice that the failure to arrive at 1:15 pm after the
recess would result in contempt. The order must provide the person with specific and definite notice
of the acts the person must or must not perform in order to avoid being held in contempt, Lee v.
State, 799 S.W.2d 750, 752-753 (Tex. Crim. App. 1990). The trial court simply said that the case
would be reset to 1:15 pm (RR 3:63 l. 9). The Court gave no admonishment that a failure to comply
for any reason would be grounds for contempt, thus a contempt finding against Graham was wrong
here.
PETITION FOR WRIT OF HABEAS CORPUS AND MOTION TO STAY JUDGMENT
14
g. Graham’s actions did not interfere with the administration of justice nor were they
intentionally disrespectful to the Court.
59. Graham’s actions did not obstruct the administration of justice nor were they intentionally
disrespectful. Criminal contempt usually results from doing an act that the court has prohibited. This may
be an act that obstructs the administration of justice or tends to bring the court into disrespect Ex parte
Krupps, 712 S.W.2d 144, 149 (Tex. Crim. App. 1986), cert. denied, 479 U.S. 1102 (1987). The essence of
contemptuous conduct is that it obstructs or tends to obstruct the proper administration of justice Ex parte
Jacobs, 664 S.W.2d 360, 364 (Tex. Crim. App. 1984). However, courts are expected to guard against
confusing acts that offend their sensibilities with acts that are actually disrespectful or that obstruct the
administration of justice, see Brown v. United States, 356 U.S. 148, 153, 78 S. Ct. 622, 2 L. Ed. 2d 589
(1958)]. The act itself must be shown to be intentionally disrespectful; whether the statement offended the
court is not the test. Contempt is not to be presumed; on the contrary, it is presumed not to exist Ex parte
Taylor, 807 S.W.2d 746, 748 (Tex. Crim. App. 1991). Therefore, the fact that conduct may be irritating or
exasperating does not necessarily render it contemptuous see Ex parte Pink, 746 S.W.2d 758, 762 (Tex.
Crim. App. 1988). However, improper actions by counsel should only be considered contemptuous if
they actually interfere with the administration of justice, see Ex parte Curtis, 568 S.W.2d 363, 366–367
(Tex. Crim. App. 1978)—attorney’s remarks concerning judicial bias not disruptive.
60. For there to be contempt there need be an intentional or willful action or flagrant disregard of an
order, Williams v. Estelle, 4566 F.Supp. 1376 (S.D. Tex. 1983); Ex Parte Taylor, 807 S.W.2d 756 (Tex.
Crim. App. 1991). There is no contempt where there is a good faith attempt at substantial compliance
with a court order; Rowe v. Moore, 756 S.W.2d 117 (Tex. App. Houston 1st Dist. 1988); Ex Parte
Sweeney, 628 S.W.2d 855 (Tex. App. Fort Worth 1982). If an attorney fails to appear at trial but the facts
show a good cause or excusable neglect for the failure then there is no contempt that has been committed.
Williams v. Estelle, 4566 F.Supp. 1376 (S.D. Tex. 1983); Ex Parte Taylor, 807 S.W.2d 756 (Tex. Crim.
App. 1991).
PETITION FOR WRIT OF HABEAS CORPUS AND MOTION TO STAY JUDGMENT
15
61. Graham, being one of the only African-American, out-of-town lawyers practicing on the Court
appointment list in Comal county had been singled out for contempt action whereas other attorneys had
not been (RR 2:26 l.10-20; not a regular practice of the court to make an attorney appearance shortly after
9 am the basis of a show cause order, yet it was the basis of a show cause order against Graham).
Standing in the hall way for a brief period of time in order to complete a client phone call shows the
respect that Graham had for the Court for not wanting to interrupt Court proceedings. There were no
obstructions to the proper administration of justice because client Chenoweth was already in the
courtroom, had already announced her appearance, and attorney Graham entered the courtroom a few
minutes later and indicated to the court that he was ready to proceed with arraignment (RR 2: 47 l. 11-18).
The case had been set for arraignment and the necessary arraignment documents had been signed by the
client on 2/25/2014 and presented to the Court. (CR 1:15). The purpose of the hearing for 2/25/2014 had
been accomplished and there was no delay in the case. Upon having completed the purposes of the
hearing it was usually the Court’s practice to reschedule the case for the entry of a plea or for a trial
setting. Even though the case was not scheduled for plea disposition on 2/25/2014 (CR Supplement
1:20), Graham was prepared to dispose of the case. Graham brought it to the Court’s attention numerous
times that the case was ready to be disposed of by entry of a plea all to no avail. (RR 3:48 l. 1-10); (RR
3:62 l. 18-22). Graham waited hours attempting to resolve the case. (RR 2:44 l. 24-25; RR 2:45 l. 1-4).
During the lunch recess, Graham went to the jail in Bexar county to talk to a client who had a trial setting
in a few days and in the process was a few minutes late in getting back because of traffic and because
there was a delay in transporting the client in the Bexar county jail. (RR 3:45 l. 5-14). In fact, Graham
made a good faith effort to comply with the Court’s order by coming back to the Court as quickly as
possible (RR 3:54 l. 4-8).
62. The traffic delay, the jail delay, the fact that the delay was only a few minutes, and the fact that
the purpose of the arraignment hearing had been accomplished, shows that there was no delay in the
PETITION FOR WRIT OF HABEAS CORPUS AND MOTION TO STAY JUDGMENT
16
administration of justice. By bringing it to the trial court’s attention that the case was set for plea,
Graham was actually expediting the conclusion of the case and the administration of justice. There was
no flagrant disregard for the order of the trial court and Graham provided a good cause reasoning or
excusable neglect for the slight tardiness in arriving back at Court.
63. Furthermore Graham actions on 3/13/2014 by not appearing at the show cause hearing were not
contemptuous because a continuance was requested in advance and the Court was notified of Graham’s
conflicting court settings on that day. (CR Supplement 1:4-6). Graham also attempted to call the trial
court about the conflicting court settings and how he could not attend the 3/13/2014 show cause hearing
but was denied (RR 2:46 l. 20-25; RR 2:47 l. 1).
h. Other Courts refuse to hold contempt in similar cases
64. Courts in Texas have been reluctant to impose contempt where an attorney fails to appear or is
tardy because of a conflicting legal obligation, Minor tardiness in arriving to court because of
concomitant legal obligations is not contemptuous. Ex parte Butler, 372 S.W.2d 686, 687 (Tex. Crim.
App. 1963)(contempt improper for minor tardiness caused by conflicting settings in courts of equal
jurisdiction) ; In re Monroe, 532 F.2d 424, 425–426 (5th Cir. [Tex.] 1976) (contempt not justified when
counsel absent due to trial in another jurisdiction and withdrawal of local counsel).
65. Furthermore, Courts in other jurisdictions have been reluctant to find contempt where an attorney
is briefly tardy or fails to appear because of conflicting legal obligations: Other courts in other
jurisdictions have held that minor tardiness by a attorney does not justify contempt where there is no
contumacious intent. See In re Farquhar 492 F2d 561 (D.C. Cir. 1973) (defense attorney found not guilty
of contempt for returning to trial 8 minutes late where he had 2 conflicting court settings; the court did not
find contumacious intent to justify a finding of contempt); In Re Monroe 532 F.2d 424 (5th Cir. 1976) (no
finding of contempt where an out of state attorney failed to appear for trial due to conflicting trial
engagement; the court found that the attorney’s conduct was at most negligent, and that he lacked the
PETITION FOR WRIT OF HABEAS CORPUS AND MOTION TO STAY JUDGMENT
17
intentional or willful action or flagrant disregard of the District Court’s rules necessary for contempt);
Taylor v. District Court for the Fourth Judicial Dist., 434 P.2d 679 (Alaska 1967) (no finding of contempt
where the attorney accepted a criminal action just 2 days before the scheduled trial thinking that the
matter would be completed before the date of the trial and where the hearing was still ongoing during the
originally scheduled trial; the court determined that while the attorney may have been careless in failing
to anticipate the possibility of a conflict, his actions did not give rise to an inference of willful
disobedience of the District Court’s order); Ex Parte Butler,372 S.W.2d 686 (Tex. Crim. App. 1963)(no
contempt where defense attorney was 10 to 20 minutes late for docket call; the court noted that if the case
had been set for trial that the attorney’s absence would have only delayed it by a few minutes); Wise v.
Commonweath, 34 S.E. 453 (Va. 1899) (no contempt where the attorney was 2.5 hours late for trial and
the court was waiting for him where he was involved in another ongoing trial; the court determined that
there was not the slightest contempt of or disrespect to the lawful authority of the court that found him in
contempt). In Re Application of Mackay, 35 P.2d 385 (Cal. 1934)(no contempt where attorney appeared
38 minutes late in returning to court after a noonday continuance without justification in the absence of
an express finding by the trial court that the attorney had the ability to attend the court at the time
designated); Roselle v. State, P.2d 486 (Okla. Crim. App. 1973) (no contempt where the court observed
that a rule stating that attorneys must always be present when the case is scheduled without allowing any
flexibility was unrealistic, and where attorney provided no reason for tardiness); In re Greene, 213 F.3d
223 (5th Cir., 2000)(no finding of contempt where the attorney was 10-12 minutes late for arraignment
and offered a plausible reason for tardiness). Since there was a plausible explanation, the delay was slight
and caused because of circumstances beyond Graham’s control, there should be no finding of contempt.
PRAYER
WHEREFORE PREMISES Graham seeks the following:
PETITION FOR WRIT OF HABEAS CORPUS AND MOTION TO STAY JUDGMENT
18
1) a stay of the contempt order from the Court of Criminal Appeals while seeking habeas corpus
relief in accordance with Ex parte Camara, 628 S.W.2d 803, 804 (Tex. Crim. App. 1982);
2) that the Court grant Graham’s application for habeas corpus and reverse the trial court’s contempt
finding
3) that the Court order the release and return of the $5,000 cash bond money immediately to
Christopher Lauren Graham and that all bond obligations be discharged
4) and any other such relief in law or equity.
Respectfully submitted,
Lauren Graham & Associates PLLC
By:
CHRISTOPHER L. GRAHAM
Texas Bar No. 24047549
PO Box 226265
Dallas, Texas 75222
clgraham@lgi-law.com
CERTIFICATE OF SERVICE
This is to certify that on 3/3/2015, a true and correct copy of the above and foregoing document
was served on the following parties:
Comal County District Attorney via fax: 830-608-2008
Judge Gary Steel via fax: 830-608-2030
Judge Doug Shaver: 830-608-2030
WORD COUNT CERTIFICATE
Pursuant to TEX. R. APP. P. 9.4, I hereby certify that this appellate brief contains 6614 words.
This is a computer-generated document created in Microsoft Word. In making this certificate of
compliance, I am relying on the word count provided by the software used to prepare the
document.
PETITION FOR WRIT OF HABEAS CORPUS AND MOTION TO STAY JUDGMENT
19
PETITION FOR WRIT OF HABEAS CORPUS AND MOTION TO STAY JUDGMENT
20
APPENDIX
1. Comal County Sheriff’s Office Record of Graham’s Incarceration App. 1; page 1
2. Receipt Evidencing Payment of Appeal Bond App. 2; page 2
3. Clerk’s Record Volume 1 of 1 App. 3; (CR 1); page 3
4. Supplemental Clerk’s Record Volume 1 of 1 App. 4 (CR Supplement 1); page 95
5. Reporter’s Record Volume 1 of 3 App. 5; (RR 1); page 121
6. Reporter’s Record Volume 2 of 3 App. 6; (RR 2); page 128
7. Reporter’s Record Volume 3 of 3 App. 7; (RR 3); page 203
PETITION FOR WRIT OF HABEAS CORPUS AND MOTION TO STAY JUDGMENT
21
1
APPENDIX 1
2 APPENDIX 2
3 APPENDIX 3
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APPENDIX 5
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121 Master Index
April 8, 2014 APPENDIX 5
1
1 REPORTER'S RECORD
VOLUME 1 OF 3 VOLUMES
2 TRIAL COURT CAUSE NO. CR2013-366
3 IN RE: ) IN THE DISTRICT COURT
)
4 ) 274TH JUDICIAL DISTRICT
)
5 CRISTOPHER GRAHAM ) COMAL COUNTY, TEXAS
6
7
8 _____________________________________________
9 MASTER INDEX
_____________________________________________
10
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19
20
21 On the 8th day of April, 2014, the following proceedings
22 came on to be held in the above-titled and numbered cause
23 before the Honorable Lloyd Douglas Shaver, Judge Presiding,
24 held in New Braunfels, Comal County, Texas.
25 Proceedings reported by computerized stenotype machine.
RICHARD E. ROBERTS, JR., CSR
(830) 228-4634
122 Master Index
April 8, 2014
2
1 APPEARANCES
2 MR. DANIEL A. PALMITIER
SBOT NO. 24062934
3 Comal County DA's Office
150 N. Seguin Street
4 Suite 307
New Braunfels, Texas 78130
5 Telephone: (830)221-1300
Attorney for State
6
MR. CHRISTOPHER L. GRAHAM
7 SBOT NO. 24047549
Lauren Graham & Associates
8 700 N. St. Mary's Street
Suite 1400
9 San Antonio, Texas 78205
Telephone: (469)605-6846
10 Attorney for Respondent
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25
RICHARD E. ROBERTS, JR., CSR
(830) 228-4634
123 Master Index
April 8, 2014
3
1 VOLUME 1
2 MASTER INDEX
3 April 8, 2014
4
5 VOLUME 2
6 SHOW CAUSE HEARING
7 April 8, 2014
8 PAGE VOL.
9 WITNESSES APPEARING ON BEHALF OF THE STATE:
10 RICK ROBERTS
11 Direct Examination by Mr. Palmitier.................10 2
Cross Examination by Mr. Graham.....................24 2
12 Redirect Examination by Mr. Palmitier...............28 2
Recross Examination by Mr. Graham...................28 2
13
14 CHELSIE CHENOWETH
15 Direct Examination by Mr. Palmitier.................29 2
Cross Examination by Mr. Graham.....................32 2
16
17 NICK REININGER
18 Direct Examination by Mr. Palmitier.................36 2
19 CYNTHIA BROWNE
20 Direct Examination by Mr. Palmitier.................39 2
Cross Examination by Mr. Graham.....................42 2
21
22 WITNESS ON BEHALF OF RESPONDENT:
23 CHRISTOPHER GRAHAM
24 Direct Testimony of Mr. Graham......................43 2
Cross Examination by Mr. Palmitier..................47 2
25
RICHARD E. ROBERTS, JR., CSR
(830) 228-4634
124 Master Index
April 8, 2014
4
1 VOLUME 3
2 EXHIBIT VOLUME
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RICHARD E. ROBERTS, JR., CSR
(830) 228-4634
125 Master Index
April 8, 2014
5
1 ALPHABETICAL INDEX OF WITNESSES
2 Direct Cross V. Dire
3 Brown, Cynthia 39 v2 42 v2
Chenoweth, Chelsie 29 v2 32 v2
4 Graham, Christopher 43 v2 47 v2
Reininger, Nick 36 v2
5 Roberts, Rick 10 v2 24 v2
28 v2 28 v2
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RICHARD E. ROBERTS, JR., CSR
(830) 228-4634
126 Master Index
April 8, 2014
6
1 EXHIBITS
2 EXHIBIT NO. DESCRIPTION OFFERED ADMITTED
3 State's 1 Reporter's Records 13 13
February 25/March 13,
4 2014
5
6
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RICHARD E. ROBERTS, JR., CSR
(830) 228-4634
127 Master Index
April 8, 2014
7
1 STATE OF TEXAS
2 COUNTY OF COMAL
3 I, RICHARD E. ROBERTS, JR., Official Court Reporter in and
4 for the 274th District Court of Comal County, State of Texas,
5 do hereby certify that the above and foregoing contains a true
6 and correct transcription of all portions of evidence and
7 other proceedings requested in writing by counsel for the
8 parties to be included in this volume of the Reporter's Record
9 in the above-styled and numbered cause, all of which occurred
10 in open court or in chambers and were reported by me.
11 I further certify that this Reporter's Record of the
12 proceedings truly and correctly reflects the exhibits, if any,
13 offered by the respective parties.
14 WITNESS MY OFFICIAL HAND on this, the 26th day of January,
15 2015.
16
17
18 /s/ Richard E. Roberts, Jr.
19 _________________________________
20 RICHARD E. ROBERTS, JR., CSR
Texas CSR 5411
21 Official Court Reporter
274th District Court
22 P.O. Box 311905
New Braunfels, Texas 78131-1905
23 Expiration: 12/31/16
24
25
RICHARD E. ROBERTS, JR., CSR
(830) 228-4634
128 APPENDIX 6 1
1 CAUSE NOS. CR2013-519, CR2013-366
VOLUME 2 OF 3 VOLUMES
2
IN RE: ) IN THE DISTRICT COURT
3 )
) 274TH JUDICIAL DISTRICT
4 )
CHRISTOPHER GRAHAM ) COMAL COUNTY, TEXAS
5
6
7
8
9
10
* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *
11
SHOW CAUSE HEARING
12 April 8, 2014
13 * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *
14
15 On the 8th day of April, 2014, the following
16 hearing came on to be heard outside the presence of a jury in
17 the above-styled and numbered cause before the Honorable Lloyd
18 Douglas Shaver, Visiting Judge, held in New Braunfels, Comal
19 County, Texas.
20 Proceedings reported by Computerized Stenotype
21 Machine; Reporter's Record produced by Computer-Assisted
22 Transcription.
23
24
25
ATTORNEYS' REPORTING SERVICE
(512) 327-4650
129 2
1 APPEARANCES
2 FOR CHRISTOPHER L. GRAHAM:
3 CHRISTOPHER L. GRAHAM
LAUREN GRAHAM AND ASSOCIATES, PLLC
4 700 N. St. Mary's Street, Suite 1400
San Antonio, Texas 78205
5
6 FOR THE STATE:
7 DANIEL PALMITIER
Assistant District Attorney
8 150 N. Seguin, Suite 307
New Braunfels, Texas 78130
9 830.608.2008
10
11
12
13
14
15
16
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22
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ATTORNEYS' REPORTING SERVICE
(512) 327-4650
130 3
1 INDEX
2 PAGE
WITNESSES APPEARING ON BEHALF OF THE STATE:
3
RICK ROBERTS
4
Direct Examination by Mr. Palmitier ....................10
5 Cross Examination by Mr. Graham ........................24
Redirect Examination by Mr. Palmitier ..................28
6 Recross Examination by Mr. Graham ......................28
7 CHELSIE CHENOWETH
8 Direct Examination by Mr. Palmitier ....................29
Cross Examination by Mr. Graham ........................32
9
NICK REININGER
10
Direct Examination by Mr. Palmitier ....................36
11
CYNTHIA BROWNE
12
Direct Examination by Mr. Palmitier ....................39
13 Cross Examination by Mr. Graham ........................42
14
WITNESS OF BEHALF OF CHRISTOPHER GRAHAM:
15
CHRISTOPHER GRAHAM
16
Direct Testimony by Mr. Graham .........................43
17 Cross Examination by Mr. Palmitier .....................47
18
19
20
21
22
23
24
25
ATTORNEYS' REPORTING SERVICE
(512) 327-4650
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1 EXHIBITS
2 EXHIBIT NO. DESCRIPTION MARKED OFFERED ADMITTED
3 State's 1 Reporter's Record 13 13 13
Feb. 25/March 13, 2014
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ATTORNEYS' REPORTING SERVICE
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132 5
1 THE COURT: All right. We have two Show Cause
2 orders, No. CR2013-366, In Re Christopher Graham and
3 CR2013-519, In Re Christopher Graham.
4 Both sides ready to appear?
5 MR. PALMITIER: Yes, Your Honor.
6 MR. GRAHAM: Your Honor, I made a request last
7 time for a court-appointed attorney. I just want to make sure
8 that the Court has denied that request for purposes of the
9 record.
10 THE COURT: All right. Let the record reflect
11 it has been denied.
12 Are you ready to proceed?
13 MR. PALMITIER: Yes, Your Honor.
14 The State calls its first witness, court
15 reporter Rick Roberts.
16 (Witness placed under oath by the Court)
17 THE COURT: Have a seat.
18 Are there any other witnesses in the courtroom
19 that are going to testify?
20 MR. PALMITIER: There will be one more showing
21 up in the next --
22 THE COURT: Okay. Well, let me know because
23 they are going to be under the Rule. They will have to wait
24 outside.
25 MR. PALMITIER: Can I let my investigator know
ATTORNEYS' REPORTING SERVICE
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133 6
1 what to look for real quick?
2 THE COURT: Sure.
3 MR. GRAHAM: I would also invoke the Rule at
4 this time.
5 THE COURT: All right. It's been invoked.
6 MR. PALMITIER: Actually, there will be -- one
7 is here, Your Honor, our bailiff, Nick.
8 (Bailiff placed under oath by the Court.)
9 THE COURT: The Rule has been invoked. That
10 means you can no longer discuss your testimony among other
11 witnesses. You can still talk to the lawyers for either side.
12 If you do that, you have to do it where no one else can hear
13 you and you'll have to remain outside.
14 THE BAILIFF: Yes, sir.
15 MR. PALMITIER: I don't know if the Court has
16 had time to go over the files, if you would like a brief
17 opening synopsis of what the testimony would be.
18 THE COURT: Yes.
19 MR. PALMITIER: Is that yes? You would like a
20 brief synopsis?
21 THE COURT: Yes.
22 MR. PALMITIER: At this time, Your Honor, I
23 would to ask the Court to take judicial notice of the two court
24 files in Chelsie Chenoweth and additionally Cynthia Browne.
25 THE COURT: I have done so.
ATTORNEYS' REPORTING SERVICE
(512) 327-4650
134 7
1 MR. PALMITIER: Thank you, Your Honor. A quick
2 review of that is going to show, once looking at the record,
3 that on February 25th Chelsie Chenoweth was to be called for a
4 pretrial arraignment. And at about 9:00 o'clock the Court
5 started calling the docket. At 9:24 they got to
6 Ms. Chenoweth's announcement and Ms. Chenoweth, the defendant,
7 was present. However, defense counsel was not present.
8 At about 9:38 defense counsel it looked like was
9 here and that he'd be speaking with the DA's office.
10 The Court then recessed for an hour. And about
11 10:52 the defense counsel notified the Court he was ready to do
12 a plea in the case. And the Court notified defense counsel
13 that there were custody cases and a contested hearing that were
14 in front of his non-custody plea. So eventually he was
15 recessed to come back after lunch at 1:15. At 1:34 the Court,
16 going through the docket, noticed Mister -- Ms. Chenoweth was
17 present. Mr. Graham was still not present. And the Court shut
18 down at about 1:46. And Mr. Graham showed up around 2:00
19 o'clock that day.
20 So Ms. Chenoweth's case would not to able to be
21 taken up that day. It was going to have to be reset. And it
22 was reset to March 13th. And, additionally, at that point the
23 Court set a hearing for March 13 for a Show Cause as to why
24 defense counsel was late in the morning and late -- and didn't
25 show in the afternoon until after the Court had closed.
ATTORNEYS' REPORTING SERVICE
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135 8
1 March 13th, again at 9:38 in the morning,
2 Ms. Chenoweth's case was called. And Mr. Graham was not
3 present. The Court was notified that Mr. Graham would be
4 sending someone else in his place. That person did not show
5 up. And Ms. Chenoweth, when questioned, had not spoken to Mr.
6 Graham either. On that day the defense counsel or anybody from
7 his office wholly failed to show.
8 That is what the evidence will show after
9 testimony today, Your Honor.
10 THE COURT: All right. You may proceed.
11 MR. GRAHAM: Your Honor, am I permitted to give
12 an opening or --
13 THE COURT: Sure. Go ahead.
14 MR. GRAHAM: Your Honor, the fact of the matter
15 is this was a case that was -- I attempted to set on the 13th
16 of February, 2014, and called the Court in order to set Ms.
17 Chenoweth's case. It was supposed to be set on that day
18 because I had other cases that were set on the same day.
19 However, when I got here on the 13th of February, I was told by
20 the Court that, no, Ms. Chenoweth's case was not on the Court
21 docket. The fact of the matter is insofar as when her
22 subsequent court case was set on the 25th of February I didn't
23 hear her name called. You know, I wanted to verify with the
24 Court, you know, basically that her case had been called. At
25 that point I said, "Look, you know, has Ms. Chenoweth's case
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1 been called?" And I guess some kind of notation was made in
2 the Court docket that, you know, I was here and was ready to
3 proceed.
4 Shortly thereafter the case was set up for plea
5 and was ready to go. The plea paperwork in Ms. Chenoweth's
6 case had been signed and was ready. And for whatever reason,
7 the Court took a lengthy recess of an hour or longer.
8 Ms. Chenoweth's case was not gotten to after several attempts.
9 I had to notify the Court again twice that "Hey, look, we have
10 got a plea that's ready to go here."
11 And so the Court then said that the case was
12 going to be reset until 1:15 that day. So, in other words, we
13 have got a situation here where I have got a plea that's ready
14 to go and I'm waiting to get it done for hours and hours. And
15 I'm a solo practitioner. I had another consultation in San
16 Antonio, thought that I could get it done and come back. I was
17 a few minutes late. The Court indicated to me that there were
18 other contested matters that were going to be taken up prior to
19 the plea anyway. And so I got here and, lo and behold, the
20 other cases had been dismissed. My client was gone. And
21 that's pretty much what happened. It wasn't a situation about
22 any kind of intentional disrespect to the Court. It was just a
23 matter of trying to get back from San Antonio here between that
24 lunch period when the Court recalled the case at 1:15.
25 So, as a result of that, surely it's not a
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1 situation where there is any obstruction of the Court's, you
2 know, attempts at resolving cases. By all means, I was trying
3 to get that done. It was just a scheduling issue with the jail
4 down in San Antonio. As a result of that, I don't think that
5 any kind of contempt should be issued or actually held in
6 effect here today.
7 Thank you.
8 THE COURT: You may proceed.
9 RICK ROBERTS,
10 having been first duly sworn, testified as follows:
11 DIRECT EXAMINATION
12 BY MR. PALMITIER:
13 Q. Please state your name for the record.
14 A. Rick Roberts.
15 Q. And how are you employed, Mr. Roberts?
16 A. I am the official reporter for the 274th Judicial
17 District Court.
18 Q. How long have you been in that position for?
19 A. January 1st of this year was 15 years.
20 Q. Who is the judge for that particular court?
21 A. District Judge Gary Steel.
22 Q. How long have you worked with him for?
23 A. Also that -- we started January 1, 1999. That is
24 the day he took the bench.
25 Q. So working with him over 15 years, have you got to I
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1 guess realize a pattern in how his docket is called?
2 A. I do.
3 Q. Okay. To become a certified court reporter, what
4 kind of qualifications, education do you need?
5 A. First, you get your certification from some
6 accredited school that basically is a proficiency that you
7 receive that qualifies you to take a State test that's given
8 quarterly. At that point you have to pass three phases, 225
9 words a minute Q&A, 200 jury charge, and 180 literary. If you
10 pass those -- all three at 95 percent, you become certified by
11 the State of Texas.
12 Q. And did you do such?
13 A. I did.
14 Q. So what certifications do you hold?
15 A. I hold that certification as an official court
16 reporter for the State of Texas.
17 Q. Now, on February 25th and March 13th, what were you
18 doing?
19 A. We were handling a nonjury docket here in Comal
20 County.
21 Q. And were you recording the record that was going on
22 those two dates?
23 A. I was.
24 Q. How did you do such?
25 A. I do it by court reporting machine and I also have
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1 got a laptop. And that's how I report all of our jury and
2 nonjury cases.
3 Q. Is part of your job preparing records for court
4 cases?
5 A. Yes, it is.
6 Q. Did you prepare a record in this particular case?
7 A. Yes, I did.
8 Q. What were the dates you prepared the record for?
9 A. If memory serves, February 25th, 2014, and March 13,
10 2014.
11 Q. How many copies of the records did you prepare?
12 A. I prepared an original and two copies.
13 Q. Who did you give those copies to?
14 A. The original and one copy to you, and then I mailed
15 a copy to opposing counsel.
16 Q. How did you mail the copy to opposing counsel?
17 A. Certified return receipt.
18 Q. And did you return -- did you receive a return
19 receipt?
20 A. Yes, sir.
21 Q. Do you remember when it was delivered to him?
22 A. I want to say on or about April the 2nd. I also
23 sent both counsel an electronic copy via e-mail.
24 Q. So when you say "both counsel," is that Mr. Graham
25 as well?
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1 A. Yes.
2 MR. PALMITIER: May I approach the witness, Your
3 Honor?
4 THE COURT: Yes.
5 (State's Exhibit No. 1 marked)
6 Q. (By Mr. Palmitier) I'm showing you what's been
7 marked as State's Exhibit No. 1. Do you recognize this?
8 A. I do.
9 Q. And who prepared it?
10 A. I prepared this.
11 Q. Okay. Did you prepare it with a device that was
12 capable of making an accurate reflection of the record on those
13 two dates?
14 A. Yes, I did.
15 Q. Has it been changed or altered in any way?
16 A. No, sir.
17 MR. PALMITIER: If the record would just reflect
18 I'm showing State's No. 1 to Mr. Graham for inspection.
19 MR. GRAHAM: I'll object to relevance on the
20 basis it contains the whole docket. I don't think it's
21 relevant so far as this Show Cause hearing goes. In addition
22 to that, it contains hearsay statements.
23 THE COURT: That's overruled. It's admitted.
24 MR. PALMITIER: State offers Exhibit 1.
25 Q. (By Mr. Palmitier) Look at State's 1. Can you
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1 please tell the Court what time Judge Steel started calling the
2 docket on February 25th?
3 A. With permission, I'm going to unbind this so that I
4 can take a look at the time stamps, with your permission.
5 Okay. On page three of Volume 1, the setup time, that first
6 time that's indicated, 8:22:22AM, is the time that I came in
7 and set up my machine -- my laptop and my machine to prepare
8 for the day. And then the next time that shows up, the 9:06
9 a.m., is the time when he began calling the docket.
10 Q. You said you have worked with Judge Steel for 15
11 years?
12 A. That's correct.
13 Q. And you are familiar with his practice of how he
14 calls the docket?
15 A. I am.
16 Q. Could you please, for the record, describe how the
17 docket is typically called?
18 A. Yes. The -- what he normally does is he will call
19 the civil docket first. In cases -- or in dockets when we have
20 both civil and criminal, he will call the civil docket first,
21 take announcements. If there are announcements of ready, he
22 will go ahead and hear those if they are short. Short
23 announcements of ready he will go ahead and try and get those
24 heard. That can take 10 or 15 minutes.
25 Once he's taken any short announcements of ready
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1 or uncontested announcements, he will then call the criminal
2 docket and take announcements for the criminal docket.
3 Q. Okay. Once he takes announcements for the criminal
4 docket, does he have any sort of preference on how he takes up
5 the cases?
6 A. His main preference is custody over non-custody
7 cases. His priority is that he likes to resolve all custody
8 cases, if possible, before the noon hour so they transport --
9 you only have to make one transport for the day and don't have
10 to come back after lunch.
11 Q. Now, on this particular day, without getting into
12 specifics, was there anything out of the ordinary on how the
13 docket was called?
14 A. My memory, no. I think it went the traditional way.
15 Q. Okay. Refer you to your report or record. On page
16 21, please tell the Court, for the record today, what time
17 Ms. Chenoweth's case was first called.
18 A. That would be 9:24 a.m.
19 Q. Looking to your record, was Ms. Chenoweth present?
20 A. The defendant answered present or answered, "Here."
21 Q. Okay. Did Mr. Graham announce present for
22 Ms. Chenoweth?
23 A. It appears that he was not present. The defendant
24 then responds to the Court whether her counsel was here. Her
25 response was, "I haven't heard from him."
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1 Q. What did the Court do at that point?
2 A. His response is, "Give him a call and prepare a show
3 cause."
4 Q. Now, you are aware that Mr. Graham did show up later
5 that morning?
6 A. He did show up later that morning, yes, sir.
7 Q. I refer you to your record at page 34. Can you
8 please tell the Court today what time Mr. Graham announced for
9 Ms. Chenoweth?
10 A. Yes. That would be 9:38 a.m.
11 Q. If you can tell from the record, what was Mr. Graham
12 and Ms. Chenoweth's case there set for that day?
13 A. I believe it was set for arraignment. Let me verify
14 that. Yes, that is correct.
15 Q. What did the Court let Mr. Graham know at that
16 moment when he announced?
17 A. Usually on first settings for arraignment the Court
18 advises counsel to either get a waiver of arraignment from
19 their client or he will arraign them. And that is what was
20 stated here on page 35. The Court says, "For arraignment. I
21 need you to say hello to the DA's office. If there is nothing
22 we can do today, then get me a waiver of arraignment or bring
23 your client up and let me arraign her."
24 Q. Okay. What did Mr. Graham respond?
25 A. "Sounds good. Thank you very much, Your Honor."
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1 Q. What did the Court then start taking up after --
2 after that discussion with Mr. Graham?
3 A. Let's see. It looks like he's continuing to look
4 for people that didn't answer the docket call, and then looks
5 like he took a sentencing.
6 Q. Now, once the Court has handled all of the matters
7 that it has before it in the morning, what does the Court
8 typically do?
9 A. The Court will then usually take a break once he's
10 taken the announcements of ready on the first docket call. And
11 sometimes we get announcements of ready during the morning and
12 those usually are taken before any breaks are done. If there
13 is nothing else to be heard or ready, the Court at that time
14 will take a break.
15 Q. Looking at the record, can you tell what time the
16 Court took a recess that morning?
17 A. Recess was taken at 9:48 a.m.
18 Q. And do you know what time the Court started back up?
19 A. Yes. It was 10:48 a.m.
20 Q. Once the Court started back up, what did the Court
21 start doing?
22 A. The Court's usual procedure -- and did so in this
23 case -- is to recall the docket on any of the cases that have
24 not been resolved.
25 Q. Refer you to page 48 of your record.
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1 When did he address Mr. Graham?
2 A. It that would be at 10:52 a.m.
3 Q. What was the discussion that took place at that
4 time?
5 A. Discussion had to do -- Mr. Graham was announcing
6 that they had a plea ready in this case.
7 Q. Okay. And what did the Court let Mr. Graham know at
8 that time?
9 A. He had -- he had actually scratched that case off of
10 his docket once he had spoken to Mr. Graham earlier. And so
11 now he was aware that there was a plea ready.
12 Q. Could he take up the plea at that time?
13 A. He did not take it up then.
14 Q. Why was that? What was in front of it?
15 A. Either previous announcements of ready or, again,
16 custody cases take priority.
17 Q. Was there any other hearing set for that morning
18 that took precedent?
19 A. Yes. There was one in the original announcement on
20 the docket call. There was an attorney out of Bexar County who
21 had a trial starting at 1:30. I believe he also had a custody
22 case here, a contested Motion to Revoke. And I think the
23 announcement was approximately one hour.
24 Q. And the contested hearing -- was that defendant in
25 custody?
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1 A. Yes. That is my recollection.
2 Q. Did that take precedent over Mr. Graham's matter
3 with Ms. Chenoweth?
4 A. That's correct.
5 Q. Now, I refer you to page 63 of your record. Please
6 tell the Court today what the Court did before it broke for
7 lunch.
8 A. At that point, once he recognized that it was 11:10
9 a.m. and that he had an announcement of one hour on a contested
10 Motion to Revoke, he advised the three remaining cases to
11 return at 1:15 while he resolved the Motion to Revoke and took
12 a lunch break.
13 Q. Once the Court reconvened at 1:15, was there
14 anything else in front of Ms. Chenoweth's case?
15 A. His custom is -- which is he recalled the docket.
16 Of course, there were only three cases left. He took those
17 announcements and then began hearing the cases that were ready.
18 Q. What time did the Court start back up after its
19 lunch recess?
20 A. The Court started up at 1:34 p.m.
21 Q. And was Mr. Graham present at 1:34 p.m.?
22 A. He was not present.
23 Q. Was Ms. Chenoweth present?
24 A. Yes, she was present.
25 Q. Okay. Did the Court call her case to be heard?
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1 A. Yes, he did.
2 Q. And what happened next?
3 A. The defendant announced, "I'm here." And the
4 bailiff then announced to the Court that Mr. Graham has not
5 come back yet.
6 Q. Did you all wait for Mr. Graham?
7 A. No, sir, we began hearing the cases that were ready
8 to be heard.
9 Q. Okay. What time did you all finish the cases that
10 were being heard?
11 A. 1:46 p.m.
12 Q. And, before that, did the Court have a conversation
13 with Ms. Chenoweth?
14 A. Actually, at 1:46, once the last case that was ready
15 was heard and resolved, then he had the discussion with
16 Ms. Chenoweth.
17 Q. And what was that discussion?
18 A. That discussion is: "Ms. Chenoweth, we're going to
19 reset your case. I was clear. He was to be back here at 1:15.
20 I will get your attorney's attention and I will do that before
21 I leave the courthouse today. Thank you. You're excused."
22 Q. At 1:46 you all convened court?
23 A. We -- right, adjourned.
24 Q. Okay. At 1:46, did you see Mr. Graham in this
25 courtroom?
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1 A. At 1:46 he was not present in the courtroom.
2 Q. What did you start doing at 1:46?
3 A. What I do when we finish for the day I start
4 breaking down my equipment. If there were any exhibits that
5 were marked during any contested hearings or anything like
6 that, I get with the clerk and make sure those are all turned
7 over and then break down.
8 Q. How long does it take you to break down?
9 A. Approximately 10 minutes, give or take, 10 to 12.
10 Q. Did Mr. Graham eventually show up?
11 A. Yes, he did.
12 Q. Can you estimate about what time that was?
13 A. I'm going to say it was -- I was almost through
14 breaking down. I don't remember if I had any exhibits or if I
15 dealt with the clerk on anything that day. So approximately
16 10, 12 minutes after we adjourned.
17 Q. And, by estimation, what time was that?
18 A. That would make it 1:55 p.m.
19 Q. Now, on March 13th, you were recording the record as
20 well?
21 A. That's correct.
22 Q. Was Ms. -- what was Ms. Chenoweth's case set for on
23 that day?
24 A. I don't see it stated here, but my guess would be
25 that it would be for arraignment.
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1 Q. Now, was her name called on the docket that morning?
2 A. Yes, it was.
3 Q. Looking at your record, can you see what time it
4 was?
5 A. Yes, 9:38 a.m.
6 Q. And was Ms. Chenoweth present?
7 A. She was.
8 Q. Was Mr. Graham present for her?
9 A. He was not present.
10 Q. What is the discussion the Court had with
11 Ms. Chenoweth?
12 A. With Ms. Chenoweth?
13 Q. Correct.
14 A. The Court states, "Is your attorney retained or
15 appointed?"
16 The defendant replies, "Appointed."
17 The Court: "Mr. Graham is appointed?"
18 Defendant: "Uh-huh."
19 And the Court says, "Stay put."
20 Q. Does the Court ask her if she's had any sort of
21 contact with Mr. Graham? I refer you to page 6 of your report,
22 record.
23 A. The Court asks Ms. Chenoweth, "Ms. Chenoweth, who is
24 coming over from his office?"
25 The defendant responds, "I don't know."
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1 The Court: "You don't know?"
2 The defendant: "No, sir."
3 The Court: "When your attorney gets here, tell
4 him I would like to talk to him."
5 Her response was, "I don't even know if he's
6 coming. I haven't talked to him at all since the day I -- when
7 I came back after lunch and he never showed up."
8 Q. Looking at the record for the rest of March 13, did
9 Mr. Graham ever show up that day?
10 A. He did not.
11 Q. Did he ever -- did someone from his office ever show
12 up that day?
13 A. No, sir.
14 Q. Did anybody announce for Ms. Chenoweth?
15 A. No, sir.
16 Q. Was Mr. Graham to be present on March 13th for any
17 other reason?
18 A. I don't believe so.
19 Q. Do you know if he was to be there on a Show Cause
20 hearing?
21 A. I'm sorry. Yes, he was.
22 Q. Did he announce for that?
23 A. No, sir.
24 MR. PALMITIER: Pass the witness, Your Honor.
25 THE COURT: Mr. Graham?
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1 CROSS EXAMINATION
2 BY MR. GRAHAM:
3 Q. You were talking about basically you were the court
4 reporter on the 13th of March; is that correct?
5 A. That is correct.
6 Q. Okay. And also indicated that basically I did not
7 show up at that particular Show Cause hearing. Isn't that
8 right?
9 A. That's correct, sir.
10 Q. But it's also true that I filed a Motion for
11 Continuance insofar as the Show Cause hearing goes because I
12 had prior court appearances in other counties. Are you aware
13 of that?
14 A. I believe there was mention of that, yes, sir.
15 Q. In other words, it wasn't a situation where there
16 was just a blatant disrespect for the Court date. Isn't that
17 correct?
18 A. To my knowledge, no.
19 Q. Okay. In addition to that, at that particular time
20 I had not been personally served or you don't know if I had
21 been personally served with the Show Cause Order at that point
22 prior to the 13th. Isn't that right?
23 A. That is correct. I did not know.
24 Q. Okay. So, in other words, you couldn't say one way
25 or another if it had taken place, the personal service, or not.
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1 Isn't that correct?
2 A. That is correct.
3 Q. All right. Now, you were also talking about the
4 court appearance insofar as the February 25th. Is that
5 correct? You were also the court reporter on that particular
6 day?
7 A. I was.
8 Q. Okay. And, typically, how long does it take for
9 pleas to be completed, an agreed plea?
10 A. He gets through them pretty quick. I want to say
11 five minutes, give or take.
12 Q. Five minutes. Okay. But, on this particular day,
13 the plea for Ms. Chenoweth was not reached. Isn't that right?
14 It wasn't handled on that particular day, was it?
15 A. It ultimately was not.
16 Q. Okay. Now, you were talking about earlier also that
17 you were very familiar with the court procedures and how the
18 docket is called. Is that correct?
19 A. That is correct.
20 Q. And so is it typical in a court procedure where, you
21 know, there is an announcement issue on a case -- typically,
22 does the Court issue Show Causes for all of those attorneys who
23 don't announce ready for whatever reason a few minutes after
24 the docket call in the morning?
25 A. His typical procedure is that if it's been a
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1 recurring problem he will do it initially. A lot of times he
2 will ask staff to prepare one. If --
3 MR. GRAHAM: I'm going to object to that, Your
4 Honor.
5 THE COURT: I'll sustain.
6 Listen to -- just a second. I'll do it.
7 Listen to the question and answer just that
8 question.
9 THE WITNESS: Yes, sir.
10 Q. (By Mr. Graham) So, in other words, when you say
11 that it's not a regular practice to issue a Show Cause Order
12 for attorneys that for whatever reason might announce ready,
13 you know, a few minutes after the 9:00 o'clock docket call --
14 that's not a regular practice, is it?
15 A. Repeat your question, please.
16 Q. It's not a regular practice for an attorney who
17 issues or says ready shortly after 9:00 o'clock docket call --
18 it's not a regular court practice to issue a Show Cause Order
19 for all of those attorneys, is it?
20 A. Not to issue one, no, sir.
21 Q. Okay. And so, on that particular day, were there
22 any other instances of individuals who may not have announced
23 ready for whatever reason where their offices had to be called?
24 A. That's usually -- it usually does happen, yes.
25 Q. Okay. Were Show Cause Orders issued for those
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1 individuals?
2 A. I would have to go back and look through the docket.
3 Q. Okay. You don't know?
4 A. I don't know.
5 Q. Now, you had also indicated there were a number of
6 contested hearings that were actually set on that particular
7 day; is that correct?
8 A. I believe there was one.
9 Q. Okay. And those contested hearings basically take
10 precedent over pleas, right?
11 A. If they are custody cases, yes. He does normally
12 try to take the shorter cases first and then the longer cases
13 are put towards the back of the docket.
14 Q. Okay. But you just indicated a second ago that a
15 plea just takes five minutes, so that would be one of those
16 short cases. Isn't that correct?
17 A. That is correct.
18 Q. But, on this particular day on the 25th, my plea or
19 the Chenoweth plea was not dealt with, even though it was a
20 short case; isn't that correct?
21 A. That is correct.
22 Q. Now, there was also a contested hearing that was
23 actually scheduled to take place after lunch as well; isn't
24 that correct? After 1:15, right?
25 A. That is incorrect.
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1 Q. And so what remaining cases were there? Were they
2 all pleas?
3 A. There were three cases and they were -- none had
4 announced contested.
5 MR. GRAHAM: I'll pass the witness.
6 THE COURT: Anything else?
7 MR. PALMITIER: Just briefly, Your Honor.
8 REDIRECT EXAMINATION
9 BY MR. PALMITIER:
10 Q. You mentioned typically a Show Cause will not be
11 issued for people who are late in the morning?
12 A. Not -- not -- I believe the way he phrased the
13 question was early in the day.
14 Q. Is it typical in your experience over 15 years for
15 an attorney not to show back up after being ordered to after a
16 lunch break?
17 A. No, it's not typical.
18 Q. What about the next hearing not showing up?
19 A. That was the first.
20 MR. PALMITIER: Pass the witness.
21 THE COURT: Anything else, Mr. Graham?
22 MR. GRAHAM: Yes.
23 RECROSS EXAMINATION
24 BY MR. GRAHAM:
25 Q. Insofar as the Court date on the 13th of March, do
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1 you have any knowledge that suggests that, you know, I actually
2 attempted to move that court date but was prohibited from doing
3 so?
4 A. I have no knowledge of that.
5 Q. Okay.
6 MR. GRAHAM: No further questions, Your Honor.
7 THE COURT: Anything else?
8 MR. PALMITIER: No further questions.
9 THE COURT: Is he excused?
10 MR. GRAHAM: Yes, Your Honor.
11 THE COURT: You're excused. Thanks for being
12 here. You'll put the exhibit back together?
13 THE WITNESS: Yes, sir, I will.
14 THE COURT: Next?
15 MR. PALMITIER: The State calls Chelsie
16 Chenoweth.
17 (The witness entered the courtroom and was
18 placed under oath by the Court.)
19 THE WITNESS: Yes, sir.
20 THE COURT: Have a seat up here, please. Scoot
21 up close to the microphone so everybody can hear you.
22 Go ahead.
23 CHELSIE CHENOWETH,
24 having been first duly sworn, testified as follows:
25 DIRECT EXAMINATION
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1 BY MR. PALMITIER:
2 Q. Could you please state your name for the record?
3 A. Chelsie Chenoweth.
4 Q. Ms. Chenoweth, how do you know Mr. Graham?
5 A. He's my Court-appointed attorney.
6 Q. Okay. On February 25th, were you supposed to be
7 here in court?
8 A. Yes.
9 Q. What was that for?
10 A. Some charges that I had.
11 Q. Was Mr. Graham supposed to be here with you?
12 A. Yes.
13 Q. What time did you get here, if you remember, on
14 February 25th?
15 A. Probably around 9:00 o'clock.
16 Q. Was Mr. Graham here with you?
17 A. Not yet.
18 Q. Had you heard from him that day?
19 A. No.
20 Q. Had you heard from him at all prior to that?
21 A. The only time I talked to him was one time when he
22 became my lawyer and I had called him and he talked to me about
23 my case. That was the only time we talked ever.
24 Q. Did he let you know he was going to be late that
25 day?
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1 A. No.
2 Q. Do you remember around what time he showed up?
3 A. I really don't. It was at least 30 minutes later.
4 Q. Okay. You were set for arraignment that day. What
5 did you want to do that day?
6 A. I was ready to get it -- get sentenced.
7 Q. Okay. Were you able to do that?
8 A. No. I got a reset.
9 Q. Do you remember what time you were told to be back
10 in the afternoon that day?
11 A. 1:15.
12 Q. What time were you back that day?
13 A. 1:15.
14 Q. What time did Mr. Graham come back that day?
15 A. I don't know. The judge released me before he came
16 back.
17 Q. Did he call you to tell you he was going to be late?
18 A. No.
19 Q. That afternoon?
20 A. No.
21 Q. Did anybody from his office call you?
22 A. No.
23 Q. Do you know where he was?
24 A. No.
25 Q. What did you want to do that afternoon?
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1 A. Wanted to get sentenced. Wanted to get everything
2 over with.
3 Q. Were you able to do that that day?
4 A. No.
5 MR. PALMITIER: Pass the witness, Your Honor.
6 THE COURT: Cross-examine.
7 CROSS EXAMINATION
8 BY MR. GRAHAM:
9 Q. I represented you in your case before. Isn't that
10 correct, Ms. Chenoweth?
11 A. Yeah.
12 Q. Isn't it true basically that the plea paperwork in
13 the case was done during the morning time? Isn't that right?
14 A. Uh-huh.
15 Q. But, for whatever reason, the Court did not hear
16 your case. Isn't that right?
17 A. Yeah, he sent us to lunch.
18 Q. And also isn't it correct that basically I had to
19 remind the Court several times about, hey, look, you have got a
20 case that's ready for plea prior to the lunch hour? Isn't that
21 correct?
22 A. Yeah, you did.
23 Q. Because the Court basically continued on several
24 instances to skip over your case. Isn't that right? They
25 didn't call your case?
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1 A. Oh, yeah. That day?
2 Q. Okay. That's correct.
3 A. Yeah, uh-huh.
4 Q. In the morning time. Okay.
5 A. Uh-huh.
6 Q. And so basically it was a situation where, you know,
7 we had the plea paperwork done early in the morning, but yet
8 you were forced to wait until the afternoon time. Isn't that
9 correct?
10 A. Yes.
11 Q. And you had to come back to court. Isn't that
12 correct?
13 A. Uh-huh.
14 Q. Okay. Did the Court, when they indicated that you
15 had to come back at 1:15 -- did they make any kind -- did the
16 Court make any kind of a statement that, well, if you don't
17 come back at a certain time that there could be a contempt?
18 Did the Court say that?
19 A. I don't think so.
20 Q. All he said was to be back at 1:15; isn't that
21 right?
22 A. Uh-huh, yeah.
23 Q. And the Court also indicated there were other cases
24 that it had in addition to yours after the lunch hour. Isn't
25 that right?
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1 A. Yeah.
2 Q. Did the Court make any kind of statements about any
3 contested hearings or other hearings that were going to happen
4 after the lunch hour?
5 A. No.
6 Q. But they indicated that there were other cases?
7 A. Yeah.
8 Q. Isn't that correct? Okay. So there was no
9 indication about when actually your case was going to go after
10 1:15?
11 A. Right.
12 Q. Correct?
13 A. Right.
14 Q. You didn't have any specifics on that, right?
15 A. Right.
16 Q. And since the Court didn't provide me with any
17 specifics, would you agree with me that I wouldn't know
18 specifically when your case would have been taken up after the
19 lunch hour?
20 A. Yeah.
21 MR. PALMITIER: Objection; speculation.
22 MR. GRAHAM: I'll withdraw that, Your Honor.
23 THE COURT: Okay.
24 Q. (By Mr. Graham) And -- so isn't it true that you
25 were actually appointed a new Court-appointed attorney for your
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1 case?
2 A. Yeah.
3 Q. Is that right?
4 A. Uh-huh.
5 Q. And you also indicated you wanted to get this case
6 resolved on the 25th in the morning time as expeditiously as
7 possible, right?
8 A. Yeah.
9 Q. Okay. Now, would you say that the appointment of a
10 new attorney for your case -- would that have delayed the
11 process or made it quicker?
12 A. I think it made it quicker because yesterday I
13 finished.
14 Q. Okay.
15 A. Just one time.
16 Q. Right. But this could have been something that
17 could have been resolved before. Isn't that right?
18 A. Yeah.
19 Q. Okay.
20 MR. GRAHAM: I'll pass the witness at this time,
21 Your Honor.
22 THE COURT: Anything else?
23 MR. PALMITIER: No further questions, Your
24 Honor.
25 THE COURT: Is she free to go?
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1 MR. GRAHAM: Yes, Your Honor.
2 THE COURT: You're free to go. Thank you for
3 having to come down.
4 Call your next.
5 MR. PALMITIER: State calls Nick Reininger.
6 (The witness entered the courtroom and was
7 previously sworn by the Court.)
8 NICK REININGER,
9 having been first duly sworn, testified as follows:
10 DIRECT EXAMINATION
11 BY MR. PALMITIER:
12 Q. Can you please tell us -- tell the record how you
13 are employed?
14 A. I'm employed by the Comal County District Court.
15 Q. And which court is that?
16 A. The 207th, 274th, the 433rd and the 22nd.
17 Q. How long have you been in that position?
18 A. Approximately three years.
19 Q. Do you remember what you were doing on February
20 25th? I'm sorry. March 13th.
21 A. Yes. I was working for Judge Gary Steel.
22 Q. March 13th and February 25th.
23 A. 274th District Court bailiff.
24 Q. And particularly on February 25th, did you remember
25 what was going on that day?
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1 A. It was a mixed docket, nonjury criminal and civil
2 cases.
3 Q. Did you have any contact with Mr. Graham that day?
4 A. Yes, I did.
5 Q. And could you please explain on the record what the
6 contact was?
7 A. Mr. Graham had a case, a criminal case on the
8 docket. He came in in the morning docket, checked in with me.
9 He was running a little bit late. He made contact with his
10 defendant. I saw him throughout the day. We broke for lunch
11 approximately around 12:00 o'clock. We came back at 1:15.
12 There was a couple of cases left for the afternoon docket. We
13 concluded the business of the docket that day for Judge Steel
14 and Mr. Graham's case was the only case left.
15 Q. Did Mr. Graham show up for the afternoon?
16 A. Eventually he did. Not -- not at the time we came
17 back.
18 Q. What time was everybody supposed to be back at?
19 A. Judge Steel told all the remaining cases on the
20 docket personnel to be back at 1:15.
21 Q. Do you remember what time Mr. Graham showed up?
22 A. It was around 2:00 o'clock, maybe a few minutes
23 before 2:00 o'clock. Judge Steel had just left the bench when
24 Mr. Graham came in.
25 Q. Did you have a discussion with him at all at that
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1 point?
2 A. I did because the judge had left the bench and Mr.
3 Graham's client had already been released. Mr. Graham asked me
4 where his client was. I said that the judge had excused her.
5 I told Mr. Graham I would ask Judge Steel if he would like to
6 talk to him in chambers. I went back in chambers. I asked
7 Judge Steel if he would like to see Mr. Graham. He said that
8 he would not like to see him, to inform Mr. Graham that he was
9 going to issue a Show Cause.
10 So I came back out in the courtroom. I told Mr.
11 Graham he did not wish to see him at this time, that a Show
12 Cause Order was going to be issued.
13 Q. Did Mr. Graham have any explanation as to where he
14 had been or why he was late?
15 A. No. He responded to me, "Is the judge really going
16 to issue a Show Cause Order for me being 45 minutes late?"
17 I said I really had no say-so in the matter.
18 That's just what he told me to relay to Mr. Graham.
19 MR. PALMITIER: Pass the witness, Your Honor.
20 THE COURT: Mr. Graham?
21 MR. GRAHAM: I have no questions, Your Honor.
22 THE COURT: All right. You can step down.
23 Thank you. You can remain in the courtroom.
24 He's released from the Rule now, isn't he?
25 MR. GRAHAM: That's correct, Your Honor.
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1 THE COURT: All right. Thank you.
2 MR. PALMITIER: And the only other witness I
3 have, Your Honor, is a Cynthia Browne. It's in relation to the
4 second Show Cause Order.
5 THE COURT: All right. Cynthia Browne.
6 (The witness entered the courtroom and was
7 placed under oath by the Court.)
8 THE COURT: Come up here and have a seat,
9 please.
10 CYNTHIA BROWNE,
11 having been first duly sworn, testified as follows:
12 DIRECT EXAMINATION
13 BY MR. PALMITIER:
14 Q. Would you please state your name for the record?
15 A. Cynthia Browne.
16 MR. GRAHAM: I'm going to object to the State
17 proceeding on this particular Show Cause. The only Show Cause
18 Order that I had notice of was the one insofar as Ms. Chenoweth
19 goes, Your Honor.
20 THE COURT: That's overruled.
21 Go ahead.
22 Q. (By Mr. Palmitier) How do you know Mr. Graham?
23 A. He's my Court-appointed attorney.
24 Q. Is he still your Court-appointed attorney this day?
25 A. I fired him the last time I was in court.
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1 Q. The last time you were in court, do you remember
2 what day that was?
3 A. Last week. I don't remember what day.
4 Q. Do you remember why you were here?
5 A. I have no idea why I was here.
6 Q. Were you set to be here for a jury trial?
7 A. Yes, on March 31st.
8 Q. Now, do you remember that day? We called the docket
9 and we called your name for announcements?
10 A. Yes.
11 Q. What happened?
12 A. My attorney wasn't here.
13 Q. Were you here?
14 A. Yes.
15 Q. Were you ready for trial?
16 A. Yes.
17 Q. Okay. Had you spoken to your attorney before that
18 day?
19 A. Probably like a month prior maybe, maybe three
20 weeks. I'm not sure.
21 Q. Okay. Had he told you that he was not going to be
22 there that day?
23 A. No.
24 Q. Had anybody from his office told you he was not
25 going to be there that day?
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1 A. No.
2 Q. Were you otherwise ready to proceed to trial?
3 A. Yes.
4 Q. Do you feel your attorney was ready to proceed with
5 trial?
6 A. Yes.
7 Q. Had you all discussed it before?
8 A. Yes.
9 Q. Had not for him not being here, you would have been
10 ready to go to trial?
11 A. Yes.
12 Q. And were we able to do that that day?
13 A. No.
14 Q. Why is that?
15 A. I don't know why I was called for court that day
16 because I had my trial on March 31st. I was kind of confused
17 why I was now coming on March 31st.
18 Q. Okay. On that day that you were in court, did you
19 ever hear from your attorney?
20 A. No.
21 Q. Okay. Or anybody from his office on that day?
22 A. No.
23 Q. Okay. What about the day of trial? Did you hear
24 from your attorney?
25 A. Yes.
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1 Q. And were you ready to proceed to trial that day?
2 A. No. It got reset to May 12th.
3 MR. PALMITIER: Pass the witness, Your Honor.
4 THE COURT: Cross-examine.
5 CROSS EXAMINATION
6 BY MR. GRAHAM:
7 Q. Ms. Browne, I don't know if you are actually aware
8 of this, but your case was actually far down the list insofar
9 as cases that were going to trial. Are you aware of that?
10 A. Yes.
11 Q. In other words, it wasn't likely that your case was
12 actually going to go to trial because the Court also had a
13 capital murder case that was going on that particular day.
14 Isn't that right?
15 A. Yes.
16 MR. GRAHAM: I'll pass the witness.
17 THE COURT: Anything else?
18 MR. PALMITIER: No further questions.
19 THE COURT: You can be returned. Thank you for
20 coming.
21 Anything else?
22 MR. PALMITIER: No, Your Honor. No further
23 witnesses at this time.
24 THE COURT: Mr. Graham?
25 MR. GRAHAM: I would like to give some testimony
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1 in this case, Your Honor.
2 THE COURT: Sure. Come on up.
3 MR. GRAHAM: Whether I do it here or on the
4 witness stand -- how would you like me to do it?
5 THE COURT: Let's do it up here on the witness
6 stand.
7 MR. GRAHAM: Sure.
8 (The witness was placed under oath by the
9 Court.)
10 THE COURT: Have a seat, please.
11 CHRISTOPHER GRAHAM,
12 having been first duly sworn, testified as follows:
13 DIRECT TESTIMONY
14 THE WITNESS: It's just a narrative format?
15 THE COURT: Introduce yourself just like you
16 were calling a witness.
17 THE WITNESS: Sure. My name is Christopher
18 Graham. I'm an attorney. I have been Court-appointed on
19 several cases, the Chelsie Chenoweth case and also the Cynthia
20 Browne case.
21 And in response to the State's -- or actually
22 the Show Cause Orders that were issued in the Chelsie Chenoweth
23 case, I just wanted to start with how this whole process began.
24 Basically, on the 12th of February, 2014, I
25 tried to set this case in order to get it done and also pled
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1 out on the 13th because I had other cases that were set on that
2 same day. Okay. I was actually unable to do so because when I
3 got to court on the 13th what happened was the Court indicated
4 that somehow the case was not on the Court docket. This was a
5 situation where the Chenoweth case probably could have been
6 dealt with on that day. I was then told the case was reset to
7 the 25th of February, in which case I then appeared again on
8 the Chenoweth case in order to see if we could get it resolved.
9 My understanding is the case was set for an arraignment
10 setting.
11 And at that point I didn't hear the Chenoweth
12 case actually had been called insofar as the docket goes. And
13 so I walked in the court and I said, "Well, has the case been
14 called?"
15 And the Court then makes the notation.
16 Shortly thereafter I negotiate with the
17 prosecutors, were able to work out a deal for her insofar as a
18 plea goes. The plea paperwork was signed. And, for whatever
19 reason, I had difficulty in order to get the plea actually
20 heard. This is about maybe 9:30 or maybe 9:45, somewhere in
21 there. It didn't take very long in order to get the plea
22 paperwork done in the case.
23 And so basically the Court then goes on a break.
24 I'm trying to get the plea done and actually heard by the
25 Court. So this is a situation where basically from almost
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1 10:00 o'clock until about 1:15 when the Court reconvenes after
2 lunch I'm trying to get my plea done. It doesn't make sense to
3 me as to why it's taking so long in order to get this plea done
4 in order to move this case.
5 In order to use my time efficiently, I'm a --
6 I'm a solo practitioner. And I had a case that was actually
7 set for trial in the next few days in San Antonio. I figured
8 that once the Court broke for the lunch period from about, you
9 know, 12:00 o'clock to about 1:15 or, you know, give or take,
10 11:45 to about 1:15 I would be in a position to go ahead and
11 visit one of my clients who was in the Bexar County jail. So
12 that's what I tried to do because I had an investigator who was
13 going to be talking to him also at that time. So I wanted to
14 make the most effective use of my time.
15 So I talked to my client down there in
16 preparation for trial in Bexar County. Then I come back. And,
17 for that reason, I was a few minutes late. Now, I didn't think
18 that it was going to be a problem because, No. 1, the Court did
19 not tell me that, you know, you are automatically going to get
20 a Show Cause issued.
21 In addition to that, based on the Court and how
22 it functioned before, you know, things don't typically start on
23 time in this particular court. So I thought that I had a few
24 minutes in order to spare.
25 In addition to that, the Court also indicated
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1 that there were -- there was a contested hearing that was going
2 to be heard shortly after the lunch hour. So I thought that I
3 would be okay.
4 And so I came back and then I tried to discuss
5 the matter with the Court about, you know, "Where is my client
6 at? What's going on here? This is the reason for the delay."
7 And then I get hit with a Show Cause.
8 Now, I've practiced law for quite some time in
9 various counties and I have never seen a situation where an
10 attorney gets a Show Cause, you know, after one issue. And
11 it's an excusable issue. And we're talking about just a few
12 minutes late.
13 Now, the thing about it is this is not a
14 situation where there was any kind of deliberate disrespect to
15 the administration of the court by no means. It was a
16 situation where, you know, I have got to move around to
17 different counties in order to take care of cases that are set
18 for trial. So I did show up, you know, albeit it a few minutes
19 late.
20 And insofar as the March 13th, 2014 hearing
21 goes, the Court issued me a court date in order to be here.
22 However, I had already had other court dates that were set that
23 I could not move in Williamson County. So, as a result of
24 that, I filed a Motion for Continuance. It was denied. I
25 tried via telephone in order to talk to the Court about moving
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1 the Show Cause date and that was again denied.
2 Now -- so I think that -- based on the
3 circumstances, I think that a Show Cause or at least a contempt
4 finding in this case is inappropriate. It's not a situation
5 where there was any kind of intentional disregard for Court
6 orders.
7 THE COURT: Cross-examine?
8 CROSS EXAMINATION
9 BY MR. PALMITIER:
10 Q. What time did you show up on February 25th?
11 A. Shortly after 9:00 o'clock.
12 Q. Exact time?
13 A. I don't know the exact time.
14 Q. Were you there for the docket call when it started?
15 A. I didn't hear her name called. I didn't hear Ms.
16 Chenoweth's name called. That's why I had to approach the
17 bench in order to make sure that, you know, I was registered as
18 being here.
19 Q. The reason you didn't hear her name called -- is
20 that because you weren't there?
21 A. Because I was out in the hall.
22 Q. Did you let Ms. Chenoweth know that you were out in
23 the hall?
24 A. No.
25 Q. Why were you out in the hall?
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1 A. I believe it was a phone call I was taking.
2 Q. Who was that phone call with?
3 A. It was one of my clients out of Dallas.
4 Q. What was the name?
5 A. Ms. Harper I believe.
6 Q. What is her first name?
7 A. I don't know. I don't know what the first name is
8 off the top of my head.
9 Q. Do you know what case it relates to?
10 A. It was -- I think it was a breach of contract case
11 or something like that.
12 Q. Do you know which court it was set in?
13 A. Court No. 3 I believe out of Dallas.
14 Q. She is the plaintiff or the defendant in that case?
15 A. I think she's plaintiff.
16 Q. Who is the defendant in that case?
17 A. Not sure.
18 Q. So what time did you come in the courtroom on
19 February 25th?
20 A. I would say maybe about 9:15, somewhere in there.
21 9:15, 9:20 I would say.
22 Q. You just notified the Court today that you had lots
23 of things to do that day?
24 A. I don't understand "lots of things." What do you
25 mean?
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1 Q. You said you were a busy solo practitioner. You had
2 to be in San Antonio. You had to go to the jail?
3 A. Right. I had a case, State versus Kochanski (sic)
4 that was set, you know, just a few days away. It was
5 imperative that I talk to him in jail on that day. I have got
6 to make, you know, productive use of my time. I just can't sit
7 around during the lunch hour, so I wanted to make productive
8 use of my time.
9 Q. Did you notify the Court that you had to go do that?
10 A. No, I thought that I could actually make it. I
11 thought that I could go there and make it back.
12 Q. When you realized that you weren't going to make it
13 back, did you notify the Court that you were going to be late?
14 A. I did not. I wasn't really concerned about it
15 because I figured that the Court had, you know, several
16 hearings, contested hearings that were going on, and the Court
17 wouldn't take up Ms. Chenoweth's case immediately.
18 Q. You got to look at the record this morning, correct?
19 A. The one that you issued in evidence? That one?
20 Q. And you got a copy of it, right?
21 A. I believe I got a copy via e-mail, if it's the same
22 document.
23 Q. Okay. And also by certified mail?
24 A. Not by certified mail. I think someone from my
25 office may have picked it up, but I did get the copy by e-mail.
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1 Someone sent it to me via e-mail.
2 Q. Have you had a chance to review it?
3 A. I reviewed it, more or less.
4 Q. Okay. Going over what the Court had on its docket
5 that day, there were custody hearings it had to take up and the
6 contested hearing?
7 A. Correct.
8 Q. And that was it. All of the cases left in the
9 afternoon were just you and two other people.
10 A. Perhaps there were other cases that were actually --
11 perhaps there were cases that were resolved. I'm just going by
12 what the Court said. In other words, they were contested
13 hearings. That's what I heard before I left to lunch.
14 Q. But if you read the record and what the Court said
15 that day, they had a contested hearing they were taking up
16 before lunch. There were no contested hearings taken up after
17 lunch.
18 A. I don't believe that I heard before or after. I
19 heard contested hearing and that was going to be taken up
20 before my case is what -- I didn't know when it was going to be
21 taken up. I would assume that it would have been taken up
22 after lunch. That's what I assumed.
23 Q. But after reading the record and hearing it in court
24 today, there was no contested hearing that afternoon, was
25 there?
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1 A. I didn't actually peruse -- I didn't look at it in
2 detailed fashion. I got it, but I kind of skimmed through it.
3 Q. Would you like a chance to look at it right now?
4 A. Sure.
5 Q. If you could, look at it for its accuracy as to
6 whether or not there was a contested hearing scheduled in the
7 afternoon on that day.
8 A. What was your question again? Your question is to
9 see whether or not there was a contested hearing in the
10 afternoon? Is that your question?
11 Q. Was there a contested hearing that was announced for
12 that afternoon?
13 A. Okay. Page 62 talks about the last custody case
14 I'll take before -- or that last case I will take before we
15 start the contested hearing is Rick Anthony Cruz. I've got a
16 punishment in Lopez still pending. I've got Martinez we're
17 about to start.
18 You know, this is shortly before I believe we
19 actually broke for lunch, so all of this stuff was going to
20 take place prior to, you know, dealing with the Chenoweth plea
21 is what my understanding was.
22 Q. What time was that at?
23 A. This is -- this is between 10:53 and 11:27 a.m.
24 Q. If I refer you to page 62 of the record --
25 A. Right.
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1 Q. Okay.
2 A. Are you asking me?
3 Q. Yes.
4 A. Right. I'm talking about page 62 where he's talking
5 -- he's got all of this -- these other cases that were going to
6 proceed. And this is after I was asking about the status of
7 the Chenoweth case after the Court had neglected to call it.
8 Q. Okay. Right after you say, "Your Honor, if the
9 Court can take up -- Ms. Chenoweth as well," what does the
10 Court say?
11 A. The Court says, "Eventually. It's not a custody
12 case. I have a custody case that's ready." So --
13 Q. You say, "Okay." What does the Court say then?
14 A. "How long is that going to take? It's already ten
15 after 11:00."
16 Q. What does Mr. McCrary say?
17 A. "I don't think it will take too long."
18 Q. Okay. So you have got a contested hearing that the
19 prosecutor announces is not going to take too long. Is that
20 correct?
21 A. Right. That's what it says.
22 Q. And then what does the Court say?
23 A. The Court says, "Well, I'll tell you what. I'm
24 going to reset -- for those counsel that weren't here at 9:00
25 o'clock, Lopez will be reset for 1:15. I'm going to do
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1 Martinez."
2 And then the Court talks about Mr. Rodriguez.
3 "I've got to get this other one done. Reset for 1:15."
4 So it looks like to me there was a lot of other
5 cases that were -- that were going to go.
6 Q. By "a lot of other cases," he says, "Well, I'll tell
7 you what. I'm going to reset -- for those counsel that weren't
8 here at 9:00, Lopez" -- that's one, right?
9 A. Right.
10 Q. He's going to do Martinez right now?
11 A. Right.
12 Q. "Castilleja. I know you were here, Mr. Rodriguez,
13 but I've got to get this other one done. Reset for 1:15.
14 Chenoweth will be reset for 1:15."
15 So how many cases is that that's reset for 1:15?
16 A. And also it says that I will -- I'll take this
17 contested hearing. Rick Anthony Cruz is what he's also talking
18 about as well, as the Court says. So I guess four or five
19 cases, four cases, give or take.
20 Q. To be reset at 1:15?
21 A. That was my understanding.
22 Q. If you read the record right there --
23 A. Right.
24 Q. -- how do you understand that to be he's resetting
25 the contested hearing after 1:15?
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1 A. It doesn't say when he's going to reset it. It just
2 says we're going to start a contested hearing.
3 Q. So what time did you show back up after lunch?
4 A. I would say maybe about 1:35, give or take, because
5 it took them awhile in order to actually transport the prisoner
6 or the defendant from his custody -- from his cell in San
7 Antonio. And they were running behind, and also the traffic
8 getting back. But I did get back.
9 Q. Who was that that you were visiting in San Antonio?
10 A. It was Kochanski.
11 Q. What was the first name?
12 A. Anthony Kochanski.
13 Q. Do you know the docket number for that case?
14 A. No, I don't --
15 Q. Do you know what court it's set in?
16 A. Off the top of my head, no.
17 Q. What was so important that day that you had to go
18 visit him?
19 A. Well, there was an investigator who was helping me
20 prepare for trial in this case and he had an imminent trial
21 setting. And the only time I could meet with the investigator
22 and also get with him and Kochanski was at that time during
23 lunch. And I wanted to make productive use of my time at that
24 time. I just didn't want to sit out here and just do nothing.
25 Q. Was it actually set for trial?
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1 A. It was.
2 Q. Did it go to trial?
3 A. It did not on that particular day. It was moved.
4 But considering the amount of time that Mr. Kochanski had been
5 in jail, there was a high probability it was going to go at
6 that time.
7 Q. Once again, did you notify the Court that you were
8 going to be running late?
9 A. I did not, no.
10 Q. Did you ask for a reset to go handle the matter in
11 San Antonio?
12 A. A reset? A reset for the Chenoweth case?
13 Q. Right.
14 A. I did not, no, because I thought that I could get
15 back in time and the contested matters would be completed and I
16 could come back and deal with it.
17 Q. And it's your testimony here today that you showed
18 back up at 1:35?
19 A. I don't know the exact time, but it was a few
20 minutes after -- it was a little bit of time after 1:15. I
21 didn't log it down or anything like that.
22 Q. You did not tell the bailiff that you were 45
23 minutes late?
24 A. No, I did not. It was before 2:00. I know that.
25 Before 1:50, probably before 1:45 I would say.
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1 Q. You have had a chance to look at the record, right?
2 A. Correct.
3 Q. You saw what time it ended at?
4 A. Well, I know what the court reporter said. However,
5 he wasn't in the courtroom when I got here.
6 Q. So his testimony was false earlier then?
7 A. That's correct.
8 Q. And so would the bailiff's testimony be false?
9 A. I did speak to the bailiff. Insofar as his time
10 estimates when I got here, I don't know if that's accurate.
11 But when I got here, I don't recall seeing the court reporter
12 here.
13 Q. Move forward to the March 13th date. Why were you
14 supposed to be here?
15 A. Presumably for a Show Cause setting, Show Cause
16 setting in the Chenoweth case.
17 Q. So you were set for two -- two matters on that date?
18 A. One, as far as I know.
19 Q. Ms. Chenoweth and your Show Cause?
20 A. Right. Right.
21 Q. Two separate matters?
22 A. Okay. Yes.
23 Q. Did you show up that day?
24 A. I did not, no.
25 Q. Why is that?
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1 A. Because I had prior hearings that were scheduled in
2 Williamson County on that day. And I filed a Motion for
3 Continuance, you know, after I got the Show Cause via fax.
4 Q. When did you file your Motion for Continuance?
5 A. A few days after it was faxed to me, that the Show
6 Cause was faxed to me. I don't remember. A day or two after.
7 I don't know off the top of my head.
8 Q. Would you like to see a copy of the Court's record?
9 A. Sure.
10 Q. Do you remember what day the notice to be here was
11 sent to you?
12 A. Maybe a day or two after the 25th of February.
13 Q. So February 25th?
14 A. A day or two after that. I remember it being that
15 long.
16 Q. February 27th? Okay. That's when you were given
17 notice to be here for Ms. Chenoweth and your Show Cause
18 hearing?
19 A. Correct. It was sent to me via -- I think it was
20 sent by fax.
21 Q. And your testimony today is that you sent in the
22 Motion for Continuance shortly thereafter?
23 A. Right. I don't know exactly when it was, but I did
24 send in a Motion for Continuance as well as my response to the
25 Court's order to show cause.
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1 Q. I'm showing you what you filed as Response to Court
2 Orders to Show Cause and Request for Continuance.
3 For the record, can you read what date that was
4 filed on?
5 A. It says here March 10th, 2014.
6 Q. Okay. And so how long after you received notice was
7 that then?
8 A. Apparently, the -- it was file stamped March 10th of
9 2014.
10 Q. Okay. How many days is that before you were set to
11 be here?
12 A. Just three days apparently. However, it was
13 actually mailed in. That's why it's --
14 Q. When did the Court receive it?
15 A. All the documents are stamped March 10, 2014. I
16 assume that's when it was received and also entered into your
17 system or the court system.
18 Q. Did you get a ruling on that Motion for Continuance?
19 A. Did not, no.
20 Q. Yet you failed to show up on March 13th?
21 A. That is correct.
22 Q. Going back to that Motion for Continuance, was that
23 a sworn-to affidavit?
24 A. It was an unsworn declaration is what it was.
25 Q. Okay. So you didn't -- filing an unsworn
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1 declaration, not getting a ruling, you failed to show up on
2 March 13th for Ms. Chenoweth's matter and your Show Cause?
3 A. That is correct. I didn't show up.
4 Q. Why couldn't you be here that day?
5 A. Well, I figured one of my associates was going to be
6 able to make it on that particular day. But, apparently, he
7 had some kind of issue with the South by Southwest issue that
8 was going on in Austin and he could not get down here.
9 Q. Were you able to make it that day?
10 A. I was not, no.
11 Q. Why not?
12 A. Because of the hearings that I had in Williamson
13 County.
14 Q. What hearing was that?
15 A. I had two or three cases that were set on that
16 particular day. I don't recall who they were off the top of my
17 head, but I did have several prior arranged court appearances
18 in Williamson County.
19 Q. You don't know the names of those defendants?
20 A. I have got it in my calendar, but I don't know off
21 the top of my head, no.
22 Q. Do you remember which court you were in?
23 A. No.
24 Q. What time did you have to be there?
25 A. Morning time, 9:00 a.m.
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1 Q. What time did you finish up there?
2 A. Probably noontime.
3 Q. You don't remember which courtroom you were in?
4 A. I don't recall, no.
5 Q. Do you remember which judge you were in front of?
6 A. Off the top of my head, no. That was my first
7 appearance in Williamson County. I do not remember.
8 Q. You did make an appearance that day?
9 A. I did.
10 Q. You will be on the record there that day?
11 A. Yes.
12 Q. After finishing up, where did you go next?
13 A. I don't recall. I think I spoke to my operations
14 guy in my office and that was pretty much it. I think I went
15 back to Dallas is what I think insofar as taking cases --
16 Q. Did you check in with the Court here?
17 A. No, because I filed a Motion for Continuance. I
18 would assume the Court would either deny it or reset the case.
19 That's what I figured was going to happen.
20 Q. Looking at the motion you filed --
21 A. Right.
22 Q. Look at No. 5. You say, "The Court inexplicably
23 took a break from conducting court activities from
24 approximately 9:45 to 11:20."
25 Looking at the record, is that correct?
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1 A. Well, those are estimates based on my estimation. I
2 know it was a long time that the Court took a break and my plea
3 was not handled during that period.
4 Q. Are the times correct?
5 A. I didn't record them down specifically, so it's an
6 approximation.
7 Q. Knowing what the times are now, is that a correct
8 estimate?
9 A. I would say, give or take, a correct approximation,
10 yes.
11 Q. Would you like to look at the record?
12 A. I don't see where it says in here specifically. All
13 I know is that the break was protracted.
14 Q. Looking at No. 9, "I conducted a consultation in
15 Bexar County and then came back to the Court approximately 1:35
16 to complete the plea in this case."
17 It's still your testimony today that you showed
18 back up at 1:35?
19 A. Now, insofar as, you know, did I write it down at
20 that time as when I got back? It's an approximation. I think
21 it was about 1:35 when I got back. That's correct.
22 Q. After looking at the record and hearing testimony
23 today, do you still think that's correct, approximately 1:35?
24 A. Give or take, yes. It's a correct approximation.
25 Q. Now, that day --
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1 A. I wasn't actually -- I didn't actually talk to the
2 bailiff until shortly thereafter, but I was here around 1:35.
3 Q. On February 25th, was the Court able to dispose of
4 Ms. Chenoweth's case?
5 A. No, it was not.
6 Q. On March 13th, was the Court able to dispose of Ms.
7 Chenoweth's case?
8 A. I would assume not at that point. I assume the
9 Court basically appointed somebody else to the case.
10 Q. Why was the Court not able to do so on February 25th
11 or March 13?
12 A. Insofar as -- I'm just kind of guessing here, but on
13 the 25th I really don't have an answer for it. I think
14 certainly if pleas take five minutes in order to do, there is
15 no reason why we should have been forced or I should have been
16 forced to wait from, you know, 10:00 o'clock to 1:15 in order
17 to do a plea. I don't know the reason of that. I don't know
18 the answer to that.
19 Q. And, on March 13th, why was the Court not able to
20 dispose of Ms. Chenoweth's case?
21 A. Because the Court gave me an arbitrary date where I
22 had preexisting hearing dates that were set in Williamson
23 County on that day. And I wasn't able to be present and also
24 my associate could not get here. And he apparently had
25 communication with the Court about his difficulties getting
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1 here because of an accident in downtown Austin, Mr. James Lacy.
2 Q. So would you say due to your tardiness, unable to be
3 in court, we were not able to handle Ms. Chenoweth's case in an
4 expeditious manner?
5 A. I would say due to the breaks and the Court's
6 tardiness, the plea was unable to be handled. The plea could
7 have been handled on the 25th of February.
8 Q. So it's the Court's fault?
9 A. Well, all I know is the plea paperwork was done in
10 the morning time and, you know, there had to be a wait until
11 1:15, when, you know, the court reporter indicated that
12 basically pleas just take five minutes in order to get done.
13 Q. And Ms. Cynthia Browne's case.
14 A. Uh-huh.
15 Q. What was it set for on the Thursday prior to trial?
16 A. My understanding it was actually set for -- the
17 standard protocol here, my understanding now, is that the
18 Thursday prior to trial there is some kind of an announcement.
19 However, I called about Cynthia Browne's case. And, No. 1, it
20 was set so quickly for trial after her prior court date, which
21 was kind of strange I thought, and also because of how young
22 her case was it was far down the list. The probability of it
23 going was almost nonexistent. In addition to that, I was told
24 by Mr. Steve Thomas, one of the court coordinators here, that
25 there was a capital murder that was going and so therefore
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1 Ms. Browne was not going to go at all.
2 Q. What did the notice say in regards to being here on
3 the Thursday prior to trial?
4 A. After -- I assumed that the notice specified you
5 have got to be here for a pretrial date if it's set or a court
6 date or trial date if it's set. Sentence No. 2 or 3 it says
7 the Thursday prior to trial there are announcements.
8 Q. Did you show up the Thursday prior to trial to make
9 an announcement?
10 A. I did not, no, because I was told the case would not
11 go.
12 Q. Did that make you believe that you still did not
13 have to announce?
14 A. Yes, and also I didn't think there was protocol
15 until I read it more thoroughly about having to appear the
16 Thursday prior. I didn't know there was an automatic setting.
17 Q. Do you typically have to announce ready for trials,
18 not ready?
19 A. Most of the places that I operate in typically there
20 is a pretrial. And at that point you announce ready or not
21 ready or there is a specific setting on a specific day and you
22 announce ready. But sometimes, you know, basically if there
23 are other cases that are definitively going to go and the Court
24 is not going to pull your client over and the case is not --
25 there is no need to make an announcement if the case doesn't
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1 go.
2 Q. Does that mean that you would not have to then show
3 up?
4 A. If the case doesn't go, sometimes an e-mail,
5 sometimes a call. "Look, Mr. Graham, your case is not going to
6 go." That's how it works in some of the counties.
7 Q. You have been doing this for a long time, right?
8 A. For awhile.
9 Q. Do you know that on a list -- on a docket sheet
10 sometimes cases don't go? Sometimes they are supposed to go
11 and they don't, right?
12 A. Correct.
13 Q. That's common knowledge?
14 A. Correct.
15 Q. Routine in your practice?
16 A. Correct.
17 Q. Okay. So what would then prevent you -- or what
18 would make you think that you would not have to make an
19 announcement?
20 A. Well, like I said before, I thought that my
21 appearance was required even on a pretrial day or a trial day.
22 And that wasn't the case. But the notice says the Thursday
23 prior you need to be here to make an announcement. I thought
24 the case wasn't going to go. I didn't think the announcement
25 was ready. I thought my required appearances were on a
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1 pretrial day that was set or a trial day.
2 Q. But you acknowledge that's not what the notice told
3 you to do?
4 A. Right, and I didn't read it until -- until later,
5 that particular line.
6 MR. PALMITIER: No further questions.
7 THE COURT: Do you have any more questions of
8 yourself?
9 THE WITNESS: No, Your Honor.
10 THE COURT: You can step down.
11 THE WITNESS: Thank you very much, Your Honor.
12 THE COURT: Call your next.
13 MR. GRAHAM: No other witnesses, Your Honor.
14 THE COURT: State have anything else?
15 MR. PALMITIER: No, Your Honor. We'll rest.
16 THE COURT: Both sides rest and close?
17 MR. GRAHAM: Yes, Your Honor.
18 THE COURT: State has the right to open and
19 close.
20 MR. PALMITIER: Briefly, I think it's all before
21 the Court in the records and the testimony you heard this
22 morning, Your Honor. Clearly, Mr. Graham did not show up on
23 time on February 25th which, in and by itself, is not enough
24 for a Show Cause. But then it's not -- I guess we're not on
25 Mr. Graham's time. It's on the Court's time. There are things
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1 that a Court must take up first. And that's always been the
2 Court's practice. Custody cases have to go first. They have
3 to go back to the jail. They take precedent. And Mr. Graham
4 was ordered by the Court to be back here at 1:15, which he
5 failed to do so.
6 It's all in the record, Your Honor. You can
7 look to the testimony from Bailiff Nick Reininger. The
8 testimony from Rick Roberts, the court reporter, was that he
9 didn't show up until closer to 2:00 o'clock, 45 minutes late.
10 They were unable to handle Ms. Chenoweth's case that day,
11 although she was ready to plea and wanted to plea. That, in
12 and by itself, is probably not enough to get to the Show Cause.
13 However, what happens next is on March 13th Mr.
14 Graham fails to wholly appear on that date. That is what gives
15 rise to the Show Cause Order and what he needs to be held in
16 contempt for, Your Honor.
17 Looking at the Court's record and the testimony
18 you just heard, he received notice of it on February 25th via
19 fax and February 27th by mail. And on March 10th he filed his
20 notice for continuance. It was an unsworn declaration. And
21 without getting a hearing on it or ruling, he wholly failed to
22 show up or anybody else from his office. And, once again,
23 Ms. Chenoweth's case had to be reset.
24 And, additionally, he was there -- noticed to be
25 there that day for the Show Cause hearing which he failed to
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1 show up to as well. That, Your Honor, is enough to rise to the
2 level of contempt. It slowed down the Court's process in that
3 we were trying to move Ms. Chenoweth's case. We were unable to
4 do so on two different occasions, Your Honor.
5 Additionally, in regards to Ms. Browne's case,
6 he was noticed as well to be here on the Thursday before and
7 failed to do so. Although he may have spoken to somebody about
8 whether or not another case was going, that still does not
9 relieve him of having to show up and make an announcement of
10 ready or not ready on the Thursday prior to trial. For that,
11 Your Honor, the State is asking to hold him in contempt.
12 THE COURT: Mr. Graham?
13 MR. GRAHAM: Your Honor, the State actually
14 indicated a second ago that various actions that allegedly were
15 committed by me do not rise to the level of contempt. In other
16 words, they are saying that basically that the 25th appearance
17 -- that didn't rise to a level of contempt in what took place
18 on that particular day. However, a Show Cause Order was
19 actually issued on that particular day. You heard testimony
20 from the court reporter that indicated that it's not standard
21 practice to issue a Show Cause Order under these circumstances.
22 In other words, there were other situations where attorneys may
23 have been a few minutes late insofar as making a docket
24 announcement, but they didn't get, you know, Show Cause Orders
25 issued.
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1 For whatever reason, it seems as if I have been
2 singled out here and unjustifiably so. This is not a situation
3 where there was any kind of intentional disrespect to the
4 Court. I was here that particular morning. I showed up. I
5 tried to set the case before. For whatever reason, the case,
6 insofar as Ms. Chenoweth goes, was not set on the 13th. I came
7 back again in order to get the case finalized and waited for
8 numerous hours to order to try to get the plea done. And, for
9 whatever reason, we still could not get it done, each though
10 the Court, you know, would have taken 5 or 10 minutes in order
11 to hear a plea.
12 In addition to that, insofar as -- you know, I'm
13 a solo practitioner, Your Honor, and there are other
14 arrangements and other things I have got to do. I just can't
15 wait in one court in order to wait for a plea to take place. I
16 wanted to make constructive use of my time during the lunch
17 hour and I figured that I was able to go to San Antonio, talk
18 to Mr. Kochanski that was actually set for trial and make it
19 back.
20 The action of the jailers there insofar as not
21 getting Mr. Kochanski back from the jail in a prompt fashion
22 and also traffic issues necessitated my taking a few minutes.
23 However, I was here in the afternoon again, after having waited
24 for numerous hours, to do the plea for Ms. Chenoweth. And, to
25 my chagrin, the case had basically been -- been reset and she
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1 had been dismissed.
2 Now, insofar as the March 13th hearing, this is
3 not also my situation where basically I was trying to
4 disrespect the Court in any way. By all means, I filed a
5 Motion for Continuance in order to alert the Court that, hey, I
6 have got a preexisting hearing in a different county and
7 therefore I can't make it.
8 What I also did was have one of my associates,
9 Mr. Lacy, try to make it. He had contact with the Court. And
10 basically he was unable to make it due to an accident in
11 downtown.
12 So I think that if you look at this, if you look
13 at the law that's applicable to Show Causes and also to
14 contempt situations like this, this is not a situation where I
15 obstructed the administration of justice of this Court here.
16 If anything, the Court has somewhat delayed this process
17 because Ms. Chenoweth's plea could have been taken a long time
18 ago. And I think that appointing a new attorney on the case
19 actually delayed the process. This was a case that I was
20 intimately familiar with. This is a case where plea documents
21 were already drafted. And so there was no reason to appoint
22 somebody else and waste additional time on this plea.
23 The -- there is some case law that talks about
24 in these kinds of cases that contempt is not to be presumed in
25 these kinds of cases. In other words, contempt is actually
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1 presumed not to exist and that -- and that basically the Court
2 needs to look for things that obstruct the administration of
3 justice. That was not the case here. That was not my intent
4 here. So I would ask the Court not to find a contempt in this
5 case and proceed forward.
6 THE COURT: Anything else from the State?
7 MR. PALMITIER: No, Your Honor.
8 THE COURT: In Cause No. CR2013-519, In Re
9 Christopher Graham, the Court finds insufficient evidence to
10 hold the defendant in contempt.
11 In Cause No. CR2013-366, it appears to the Court
12 that the defendant seems to make his own determination as to
13 when he should or should not arrive in court from all the
14 evidence the Court has heard today. It's a continuing pattern.
15 Therefore, the Court finds that the defendant did fail to
16 arrive on time at the 9:00 a.m. docket call on February 25th,
17 2014. The defendant failed to return to court at 1:15 p.m. on
18 February 25th, 2014, as instructed by the Court; that
19 Mr. Graham failed to appear in court on March 13, 2014, for
20 Cause No. CR2013-366, State of Texas versus Chelsie Michelle
21 Chenoweth, as well as Mr. Graham's own Show Cause noticed on
22 that date without a grant of continuance or a leave from the
23 Court. Mr. Graham's conduct does obstruct the administration
24 of justice with the pattern that the evidence today has shown.
25 The Court now holds you in contempt in Cause No.
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1 CR2013-366 and sets your punishment for confinement in the
2 Comal County Jail for a period of 15 days and a fine of $300.
3 You can go with the bailiff.
4 MR. GRAHAM: Can we -- can we postpone that
5 particular commission?
6 THE COURT: No, you can go with the bailiff now.
7 An appeal bond at $5,000.
8 MR. GRAHAM: Appeal bond $5,000?
9 THE COURT: Yes.
10 MR. GRAHAM: Okay.
11 (End of Proceedings)
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1 C E R T I F I C A T E
2
3 STATE OF TEXAS ) CAUSE NOS. CR2013-519, CR2013-366
4 COUNTY OF COMAL )
5
6 I, DOTTIE NORMAN, Deputy Official Court Reporter in
7 and for the 274th Judicial Court of Comal County, Texas, do
8 hereby certify that the above and foregoing constitutes a true
9 and correct transcription of the hearing in the above-styled
10 and numbered cause, all of which occurred in open court and
11 reported by me.
12 I further certify that I am neither attorney nor
13 counsel for, related to, nor employed by any of the parties to
14 the action in which this testimony was taken. Further, I am
15 not a relative or employee of any attorney of record in this
16 cause, nor do I have a financial interest in the action.
17 I further certify that the total cost for the
18 preparation of this transcript is $472.00. Witness my official
19 hand this the 19th day of January, 2015.
20
21 /s/ Dottie Norman
____________________________
22 DOTTIE NORMAN, Texas CSR 2283
Expiration Date: 12/31/16
23 1806 Toro Canyon Road
Austin, Texas 78746
24 (512) 327-4650
25
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203 APPENDIX 7
204 Non-Jury Docket
February 25, 2014
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2 NON-JURY DOCKET
3 February 25, 2014
4 PAGE VOL.
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6 Reporter's Certificate ...........................75 1
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RICHARD E. ROBERTS
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