# Graham, Christopher L. > Court of Appeals of Texas · March 4, 2015 URL: https://www.frixlaw.com/law-library/cases/4046857 ## Case - **Court:** Court of Appeals of Texas - **Decided:** March 4, 2015 - **Precedential status:** Published - **Opinion:** Opinion - **Cited by:** 0 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/4046857 ## Opinion text 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 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 50 51 52 53 54 55 56 57 58 59 60 61 62 63 64 65 66 67 68 69 70 71 72 73 74 75 76 77 78 79 80 81 82 83 84 85 86 87 88 89 90 91 92 93 94 95 APPENDIX 5 1 96 2 97 3 98 4 99 5 100 6 101 7 102 8 103 9 104 10 105 11 106 12 107 13 108 14 109 15 110 16 111 17 112 18 113 19 114 20 115 21 116 22 117 23 118 24 119 25 120 26 121 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 11 12 13 14 15 16 17 18 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 11 12 13 14 15 16 17 18 19 20 21 22 23 24 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 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 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 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 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 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 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 17 18 19 20 21 22 23 24 25 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 131 4 1 EXHIBITS 2 EXHIBIT NO. DESCRIPTION MARKED OFFERED ADMITTED 3 State's 1 Reporter's Record 13 13 13 Feb. 25/March 13, 2014 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 ATTORNEYS' REPORTING SERVICE (512) 327-4650 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 (512) 327-4650 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 (512) 327-4650 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 ATTORNEYS' REPORTING SERVICE (512) 327-4650 136 9 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 ATTORNEYS' REPORTING SERVICE (512) 327-4650 137 10 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 ATTORNEYS' REPORTING SERVICE (512) 327-4650 138 11 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 ATTORNEYS' REPORTING SERVICE (512) 327-4650 139 12 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? ATTORNEYS' REPORTING SERVICE (512) 327-4650 140 13 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 ATTORNEYS' REPORTING SERVICE (512) 327-4650 141 14 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 ATTORNEYS' REPORTING SERVICE (512) 327-4650 142 15 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." ATTORNEYS' REPORTING SERVICE (512) 327-4650 143 16 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." ATTORNEYS' REPORTING SERVICE (512) 327-4650 144 17 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. ATTORNEYS' REPORTING SERVICE (512) 327-4650 145 18 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? ATTORNEYS' REPORTING SERVICE (512) 327-4650 146 19 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? ATTORNEYS' REPORTING SERVICE (512) 327-4650 147 20 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? ATTORNEYS' REPORTING SERVICE (512) 327-4650 148 21 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. ATTORNEYS' REPORTING SERVICE (512) 327-4650 149 22 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." ATTORNEYS' REPORTING SERVICE (512) 327-4650 150 23 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? ATTORNEYS' REPORTING SERVICE (512) 327-4650 151 24 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. ATTORNEYS' REPORTING SERVICE (512) 327-4650 152 25 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 ATTORNEYS' REPORTING SERVICE (512) 327-4650 153 26 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 ATTORNEYS' REPORTING SERVICE (512) 327-4650 154 27 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. ATTORNEYS' REPORTING SERVICE (512) 327-4650 155 28 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 ATTORNEYS' REPORTING SERVICE (512) 327-4650 156 29 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 ATTORNEYS' REPORTING SERVICE (512) 327-4650 157 30 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? ATTORNEYS' REPORTING SERVICE (512) 327-4650 158 31 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? ATTORNEYS' REPORTING SERVICE (512) 327-4650 159 32 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? ATTORNEYS' REPORTING SERVICE (512) 327-4650 160 33 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? ATTORNEYS' REPORTING SERVICE (512) 327-4650 161 34 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 ATTORNEYS' REPORTING SERVICE (512) 327-4650 162 35 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? ATTORNEYS' REPORTING SERVICE (512) 327-4650 163 36 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? ATTORNEYS' REPORTING SERVICE (512) 327-4650 164 37 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 ATTORNEYS' REPORTING SERVICE (512) 327-4650 165 38 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. ATTORNEYS' REPORTING SERVICE (512) 327-4650 166 39 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. ATTORNEYS' REPORTING SERVICE (512) 327-4650 167 40 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? ATTORNEYS' REPORTING SERVICE (512) 327-4650 168 41 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. ATTORNEYS' REPORTING SERVICE (512) 327-4650 169 42 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 ATTORNEYS' REPORTING SERVICE (512) 327-4650 170 43 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 ATTORNEYS' REPORTING SERVICE (512) 327-4650 171 44 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 ATTORNEYS' REPORTING SERVICE (512) 327-4650 172 45 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 ATTORNEYS' REPORTING SERVICE (512) 327-4650 173 46 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 ATTORNEYS' REPORTING SERVICE (512) 327-4650 174 47 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? ATTORNEYS' REPORTING SERVICE (512) 327-4650 175 48 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? ATTORNEYS' REPORTING SERVICE (512) 327-4650 176 49 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. ATTORNEYS' REPORTING SERVICE (512) 327-4650 177 50 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? ATTORNEYS' REPORTING SERVICE (512) 327-4650 178 51 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. ATTORNEYS' REPORTING SERVICE (512) 327-4650 179 52 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 ATTORNEYS' REPORTING SERVICE (512) 327-4650 180 53 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? ATTORNEYS' REPORTING SERVICE (512) 327-4650 181 54 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? ATTORNEYS' REPORTING SERVICE (512) 327-4650 182 55 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. ATTORNEYS' REPORTING SERVICE (512) 327-4650 183 56 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? ATTORNEYS' REPORTING SERVICE (512) 327-4650 184 57 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. ATTORNEYS' REPORTING SERVICE (512) 327-4650 185 58 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 ATTORNEYS' REPORTING SERVICE (512) 327-4650 186 59 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. ATTORNEYS' REPORTING SERVICE (512) 327-4650 187 60 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? ATTORNEYS' REPORTING SERVICE (512) 327-4650 188 61 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 -- ATTORNEYS' REPORTING SERVICE (512) 327-4650 189 62 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 ATTORNEYS' REPORTING SERVICE (512) 327-4650 190 63 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 ATTORNEYS' REPORTING SERVICE (512) 327-4650 191 64 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 ATTORNEYS' REPORTING SERVICE (512) 327-4650 192 65 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 ATTORNEYS' REPORTING SERVICE (512) 327-4650 193 66 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 th [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/4046857. Public record. Not legal advice.