no contempt where defense attorney was 10 to 20 minutes late for docket call; the court noted that if the case had been set for trial that the attorney’s absence would have only delayed it by a few minutes
How later courts described this case
- no contempt where defense attorney was 10 to 20 minutes late for docket call; the court noted that if the case had been set for trial that the attorney’s absence would have only delayed it by a few minutes
- 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
- no finding of contempt where the attorney was 10-12 minutes late for arraignment and offered a plausible reason for tardiness
Written by the judges who cited it.
The opinion
ACCEPTED
03-14-00270-CV
5585831
THIRD COURT OF APPEALS
AUSTIN, TEXAS
6/8/2015 2:43:19 PM
NO.03-14-00270-CR
V JEFFREY D. KYLE
CLERK
IN THE 3rd COURT OF APPEALS FILED IN
AUSTIN, TEXAS 3rd COURT OF APPEALS
AUSTIN, TEXAS
6/8/2015 2:43:19 PM
JEFFREY D. KYLE
Clerk
On appeal from the 207th District Court
of Comal County, Texas
ORAL ARGUMENT REQUESTED
PETITION FOR WRIT OF HABEAS CORPUS, APPELLATE BRIEF, AND
MOTION TO STAY JUDGMENT
CHRISTOPHER L. GRAHAM, Applicant, files the petition for writ of
habeas corpus, appeal and motion to stay judgment 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, mailing address PO Box 226265, Dallas, Texas; Telephone
469-605-6846; email: clgraham@lgi-law.com
3. Respondent, in the trial court is the State of Texas
PETITION FOR WRIT OF HABEAS CORPUS, APPELLATE BRIEF, AND MOTION TO STAY JUDGMENT
1
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 4
7. Statement Regarding Oral Argument 6
8. Issues Presented 6
9. Statement of Facts 7
10. Summary of the Argument 10
11. Statement of Jurisdiction 11
12. Standard of Review 12
13. Argument 15
14. Prayer 28
15. Appendix 30
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)
PETITION FOR WRIT OF HABEAS CORPUS, APPELLATE BRIEF, AND MOTION TO STAY JUDGMENT
2
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)
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)
PETITION FOR WRIT OF HABEAS CORPUS, APPELLATE BRIEF, AND MOTION TO STAY JUDGMENT
5
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
PETITION FOR WRIT OF HABEAS CORPUS, APPELLATE BRIEF, AND MOTION TO STAY JUDGMENT
4
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)
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)
PETITION FOR WRIT OF HABEAS CORPUS, APPELLATE BRIEF, AND MOTION TO STAY JUDGMENT
5
26. 10/2/2014 Graham filed its motion challenging the order sustaining the
State’s contest. (CR 1:78).
27. 3/19/2015 Graham filed an Application for Writ of Habeas Corpus. (CR
2nd Supplement 1:4).
28. Graham received no response to the request for a hearing on the
application for writ of habeas corpus, and thus requested that the trial
court take action on the application either by setting a hearing or ruling
on the application. The trial court has done neither. (CR 2nd
Supplement 1:9).
STATEMENT REGRADING ORAL ARGUMENT
29. Oral argument is requested by Graham at this time.
ISSUES PRESENTED
30. 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
PETITION FOR WRIT OF HABEAS CORPUS, APPELLATE BRIEF, AND MOTION TO STAY JUDGMENT
6
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
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
31. Graham is currently being illegally restrained as a result of the actions of
administrative law Judge Douglas Shaver.
32. The basis of the restraint is the contempt order issued by Judge Shaver on
4/8/2014 (CR 1:24)
33. 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)
PETITION FOR WRIT OF HABEAS CORPUS, APPELLATE BRIEF, AND MOTION TO STAY JUDGMENT
7
34. 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)
35. 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)
36. 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).
37. 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).
38. 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).
PETITION FOR WRIT OF HABEAS CORPUS, APPELLATE BRIEF, AND MOTION TO STAY JUDGMENT
8
39. 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)
40. 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).
41. After Court resumed the Court still did not hear Graham’s client’s plea
(RR 3: 74 l. 11-14).
42. 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).
43. 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).
44. 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).
PETITION FOR WRIT OF HABEAS CORPUS, APPELLATE BRIEF, AND MOTION TO STAY JUDGMENT
9
45. 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).
46. 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)
47. 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).
48. 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)
49. 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).
PETITION FOR WRIT OF HABEAS CORPUS, APPELLATE BRIEF, AND MOTION TO STAY JUDGMENT
10
SUMMARY OF ARGUMENT
50. 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
STATEMENT OF JURISDICTION
46. The court of appeals has appellate jurisdiction in criminal habeas corpus
matters Denby v. State, 627 S.W.2d 435 (Tex. App., Houston [1st Dist.] 1981, no
pet.), cert. denied, 462 U.S. 1110 (1983). 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
PETITION FOR WRIT OF HABEAS CORPUS, APPELLATE BRIEF, AND MOTION TO STAY JUDGMENT
11
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). Graham has filed an application for writ of habeas corpus with the
trial court (CR 2nd Supplement 1:4); therefore, this court has appellate jurisdiction
to decide this matter.
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, APPELLATE BRIEF, AND MOTION TO STAY JUDGMENT
12
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 appellate
court 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
PETITION FOR WRIT OF HABEAS CORPUS, APPELLATE BRIEF, AND MOTION TO STAY JUDGMENT
13
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
(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).
PETITION FOR WRIT OF HABEAS CORPUS, APPELLATE BRIEF, AND MOTION TO STAY JUDGMENT
14
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 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.
PETITION FOR WRIT OF HABEAS CORPUS, APPELLATE BRIEF, AND MOTION TO STAY JUDGMENT
15
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
PETITION FOR WRIT OF HABEAS CORPUS, APPELLATE BRIEF, AND MOTION TO STAY JUDGMENT
16
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 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
PETITION FOR RIT OF HABEAS CORPUS, APPELLATE BRIEF, AND MOTION TO STAY JUDGMENT
17
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 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
PETITION FOR WRIT OF HABEAS CORPUS, APPELLATE BRIEF, AND MOTION TO STAY JUDGMENT
18
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
PETITION FOR WRIT OF HABEAS CORPUS, APPELLATE BRIEF, AND MOTION TO STAY JUDGMENT
19
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 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.
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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 and could have considered other
alternatives to confinement, such as a fine, community service, house arrest,
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.
g. Graham’s actions did not interfere with the administration of justice
nor were they intentionally disrespectful to the Court.
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21
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.
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22
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).
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 (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
PETITION FOR WRIT OF HABEAS CORPUS, APPELLATE BRIEF, AND MOTION TO STAY JUDGMENT
23
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
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40
41
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, and there was no delay in the administration of justice because the
PETITION FOR WRIT OF HABEAS CORPUS, APPELLATE BRIEF, AND MOTION TO STAY JUDGMENT
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objectives of the arraignment hearing had been accomplished, there should be no
finding of contempt.
PRAYER
WHEREFORE PREMISES Graham seeks the following:
1) a stay of the contempt order while seeking habeas corpus relief and
pursuing this appeal 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
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This is to certify that on 6/8/2015, 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
Christopher L. Graham
WORD COUNT CERTIFICATE
Pursuant to TEX. R. APP. P. 9.4, I hereby certify that this appellate
brief contains 6720 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.
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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
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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.
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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.
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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."
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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?
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1 A. No.
2 Q. Were you otherwise ready to proceed to trial?
3 A. Yes.
4 Q. Do you feel your attorney was ready to proceed with
5 trial?
6 A. Yes.
7 Q. Had you all discussed it before?
8 A. Yes.
9 Q. Had not for him not being here, you would have been
10 ready to go to trial?
11 A. Yes.
12 Q. And were we able to do that that day?
13 A. No.
14 Q. Why is that?
15 A. I don't know why I was called for court that day
16 because I had my trial on March 31st. I was kind of confused
17 why I was now coming on March 31st.
18 Q. Okay. On that day that you were in court, did you
19 ever hear from your attorney?
20 A. No.
21 Q. Okay. Or anybody from his office on that day?
22 A. No.
23 Q. Okay. What about the day of trial? Did you hear
24 from your attorney?
25 A. Yes.
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1 the Show Cause date and that was again denied.
2 Now -- so I think that -- based on the
3 circumstances, I think that a Show Cause or at least a contempt
4 finding in this case is inappropriate. It's not a situation
5 where there was any kind of intentional disregard for Court
6 orders.
7 THE COURT: Cross-examine?
8 CROSS EXAMINATION
9 BY MR. PALMITIER:
10 Q. What time did you show up on February 25th?
11 A. Shortly after 9:00 o'clock.
12 Q. Exact time?
13 A. I don't know the exact time.
14 Q. Were you there for the docket call when it started?
15 A. I didn't hear her name called. I didn't hear Ms.
16 Chenoweth's name called. That's why I had to approach the
17 bench in order to make sure that, you know, I was registered as
18 being here.
19 Q. The reason you didn't hear her name called -- is
20 that because you weren't there?
21 A. Because I was out in the hall.
22 Q. Did you let Ms. Chenoweth know that you were out in
23 the hall?
24 A. No.
25 Q. Why were you out in the hall?
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1 Someone sent it to me via e-mail.
2 Q. Have you had a chance to review it?
3 A. I reviewed it, more or less.
4 Q. Okay. Going over what the Court had on its docket
5 that day, there were custody hearings it had to take up and the
6 contested hearing?
7 A. Correct.
8 Q. And that was it. All of the cases left in the
9 afternoon were just you and two other people.
10 A. Perhaps there were other cases that were actually --
11 perhaps there were cases that were resolved. I'm just going by
12 what the Court said. In other words, they were contested
13 hearings. That's what I heard before I left to lunch.
14 Q. But if you read the record and what the Court said
15 that day, they had a contested hearing they were taking up
16 before lunch. There were no contested hearings taken up after
17 lunch.
18 A. I don't believe that I heard before or after. I
19 heard contested hearing and that was going to be taken up
20 before my case is what -- I didn't know when it was going to be
21 taken up. I would assume that it would have been taken up
22 after lunch. That's what I assumed.
23 Q. But after reading the record and hearing it in court
24 today, there was no contested hearing that afternoon, was
25 there?
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1 A. Because I had prior hearings that were scheduled in
2 Williamson County on that day. And I filed a Motion for
3 Continuance, you know, after I got the Show Cause via fax.
4 Q. When did you file your Motion for Continuance?
5 A. A few days after it was faxed to me, that the Show
6 Cause was faxed to me. I don't remember. A day or two after.
7 I don't know off the top of my head.
8 Q. Would you like to see a copy of the Court's record?
9 A. Sure.
10 Q. Do you remember what day the notice to be here was
11 sent to you?
12 A. Maybe a day or two after the 25th of February.
13 Q. So February 25th?
14 A. A day or two after that. I remember it being that
15 long.
16 Q. February 27th? Okay. That's when you were given
17 notice to be here for Ms. Chenoweth and your Show Cause
18 hearing?
19 A. Correct. It was sent to me via -- I think it was
20 sent by fax.
21 Q. And your testimony today is that you sent in the
22 Motion for Continuance shortly thereafter?
23 A. Right. I don't know exactly when it was, but I did
24 send in a Motion for Continuance as well as my response to the
25 Court's order to show cause.
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1 here because of an accident in downtown Austin, Mr. James Lacy.
2 Q. So would you say due to your tardiness, unable to be
3 in court, we were not able to handle Ms. Chenoweth's case in an
4 expeditious manner?
5 A. I would say due to the breaks and the Court's
6 tardiness, the plea was unable to be handled. The plea could
7 have been handled on the 25th of February.
8 Q. So it's the Court's fault?
9 A. Well, all I know is the plea paperwork was done in
10 the morning time and, you know, there had to be a wait until
11 1:15, when, you know, the court reporter indicated that
12 basically pleas just take five minutes in order to get done.
13 Q. And Ms. Cynthia Browne's case.
14 A. Uh-huh.
15 Q. What was it set for on the Thursday prior to trial?
16 A. My understanding it was actually set for -- the
17 standard protocol here, my understanding now, is that the
18 Thursday prior to trial there is some kind of an announcement.
19 However, I called about Cynthia Browne's case. And, No. 1, it
20 was set so quickly for trial after her prior court date, which
21 was kind of strange I thought, and also because of how young
22 her case was it was far down the list. The probability of it
23 going was almost nonexistent. In addition to that, I was told
24 by Mr. Steve Thomas, one of the court coordinators here, that
25 there was a capital murder that was going and so therefore
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February 25, 2014
15
1 (Discussion off the record.)
2 THE COURT: So we will reset Weir for two weeks.
3 Uncontested.
4 2013-301, the same thing. Reset two weeks,
5 uncontested.
6 Plea docket. These three matters need to -- or
7 actually it's one matter that needs to be resolved today or it
8 goes to the jury docket.
9 2013-346, 347, 348, Abelardo Rodriguez, Jr.
10 MR. MILLAN: Your Honor, I'm going to speak to
11 my client. I'm pretty sure that's going to go to the trial
12 docket, but I'm going to try one last effort to try to come to
13 a resolution.
14 THE COURT: I'll mark you as conferring. Thank
15 you.
16 2012 -- pretrial docket. I'm talking mostly to
17 defense counsel here. If you want to go to the plea docket,
18 which is the last non-jury setting before going to the jury
19 docket, just let me know and it will happen. If you want to
20 go to the jury docket, let me know and it will happen.
21 If you want to stay on the pretrial docket,
22 you're going to need to approach, even if the D.A. is in
23 agreement, and let me know why the case is not moving forward.
24 2012-181, Kirk Slaughter.
25 MR. FANUCCHI: Good morning, Judge. He's
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February 25, 2014
20
1 acceptable to the State?
2 MS. KELLY: Yes, Your Honor.
3 THE COURT: After April 15th?
4 MR. CAMPOS: Yes, sir.
5 THE COURT: The first setting after April 15th
6 for pretrial on 2013-435.
7 MR. CAMPOS: May I be excused?
8 THE COURT: You may. Thank you.
9 2013-575, Jessica Lindig.
10 MS. ANCIRA: Your Honor, I got a phone call from
11 my client this morning saying that she didn't have
12 transportation to court.
13 THE COURT: Call her name three times, issue a
14 warrant, forfeit her bond, and get her transportation.
15 THE BAILIFF: Yes, Your Honor.
16 MS. ANCIRA: May I be excused?
17 THE COURT: You may. You might want to let her
18 know that we've issued a warrant for her arrest. That may
19 help her find transportation.
20 MS. ANCIRA: I told her to expect that.
21 THE COURT: Okay.
22 MS. ANCIRA: But I will call her and let her
23 know.
24 THE COURT: This is the arraignment docket. At
25 the very least, defense counsel, I need to arraign your
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31
1 THE COURT: Don't talk about your case.
2 THE DEFENDANT: No, everything is fine, sir. I
3 just need counsel. That's all I need.
4 THE COURT: Reset. Order to retain, 30 days.
5 Read it carefully before you sign it. If you come in again
6 without counsel, you're going to have to come up here and tell
7 me again why your new job isn't paying you or whatever that
8 is. You've told me all you need is $500. You've got 30 days,
9 which should be two paychecks. You should be able to come up
10 with $500 to retain your own counsel.
11 THE DEFENDANT: Yes, Your Honor.
12 THE COURT: Step over to the side. Make sure
13 you take a copy with you after you've read it and signed it.
14 THE DEFENDANT: Yes, sir.
15 THE COURT: Motion to Substitute: 2012-486,
16 Humberto Ibarra.
17 May I see that file, please. 2012-486.
18 THE CLERK: (Complies.)
19 THE COURT: Is your client here?
20 MR. ACEVEDO: No, Your Honor.
21 THE COURT: Did you tell him to be here?
22 MR. ACEVEDO: I just called him, Your Honor, and
23 apparently he was told that he had a setting like in March:
24 March 17th and March 11th. He's on full house arrest, Your
25 Honor. And what I'm thinking, Your Honor, is that they
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37
1 get a job, you're going to be back in here and then back in
2 the state jail facility.
3 And then my second comment is to the probation
4 department. I want you to get her some help on getting child
5 support from the father of her children.
6 PROBATION: Okay.
7 THE COURT: It says two children. You have two
8 or one child?
9 THE DEFENDANT: One.
10 MS. JONES: She has one and she's pregnant.
11 THE COURT: Okay. It's both children. And
12 that's going to be a condition of probation is that you
13 actively seek child support from the fathers of these
14 children. If you fail to do that and give them a pass, you go
15 to jail. Do you understand?
16 THE DEFENDANT: Yes, sir.
17 THE COURT: My staff is very good at getting the
18 attorney general's attention on these kind of the cases.
19 So I find you guilty and sentence you to two
20 years in a state jail facility, probated for four years;
21 $1,500 fine; $140 in restitution; court costs; Crime Stopper's
22 fee to be paid as soon as she can, accelerated; 200 hours of
23 community service restitution; and follow all of the
24 recommendations in the PSI.
25 MS. JONES: And Judge, she's a resident of
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1 THE COURT: True or not true?
2 THE DEFENDANT: All true, sir.
3 THE COURT: Does the State have a recommendation
4 in exchange for the plea of true?
5 MR. McCRARY: Basically that he get 18 months
6 state jail and a $500 fine.
7 THE COURT: Was that the original fine?
8 MR. McCRARY: That's the original sentence,
9 quite honestly. I'm not making him any kind of deal other
10 than it won't be stacked.
11 THE COURT: Okay. Then I do hereby revoke your
12 probation and sentence you to 18 months in a state jail
13 facility and give you credit for time served as allowed under
14 the rules and laws of this state.
15 THE DEFENDANT: Yes, sir.
16 THE COURT: Any and all unpaid fines, fees,
17 restitution, et cetera, will be remain due and owing.
18 Good luck, sir.
19 Thank you, Counsel.
20 THE DEFENDANT: Remain due and owing, sir?
21 Remain -- I'm confused, sir. I don't want to be confused,
22 sir.
23 THE COURT: When you originally were found
24 guilty --
25 THE DEFENDANT: Yes, sir.
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1 other one has a different value.
2 The benefit to me if they're basically
3 alternative means of committing the same offense is I get to
4 go at him two ways at once. On the other hand if he's right
5 and he's entitled to sever them and they're separate offenses,
6 I get to try him twice and try to get 20 years stacked on him
7 for two different offenses. So that's why I'm not
8 particularly offended by either idea.
9 But at the end of the day the question is what
10 the law requires. And this case out of Amarillo specifically
11 addresses that if they're not separate offenses, he's not
12 entitled to sever. It cites back to a Court of Criminal
13 Appeals case. And then these cases, Your Honor, all out of --
14 well, there's one out of El Paso and two or three out of the
15 Court of Criminal Appeals that all talk about what the
16 gravamen of theft is. You might want to review those.
17 My main concern, whichever way you go, is that
18 it's right. Because if he's right and they're severed and
19 he's taking this position and I try him on one, even if he
20 wins and I get a not guilty I get to turn around and try him
21 on the second if they're separate offenses. So --
22 MR. COLLINS: And, Your Honor, we also have the
23 issue too that for Count 2 you have to show the two or more
24 prior offenses, which then we're going to run into an issue as
25 far as 404(b) of the Rules of Evidence that is character
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1 he's going to take this position, I'm telling him straight up
2 he's going to get tried twice. You can't have it both ways.
3 You can't say they're separate offenses and make me pick one
4 and then me not get my shot at the second one.
5 THE COURT: I understand.
6 And you understand that, too, Counsel?
7 MR. COLLINS: I do, Your Honor. And we're
8 looking at, too, the value as one thing and then we're going
9 to try a second one and now we're coming back and saying the
10 value is separate. It's one or the other. Again, we're back
11 to: What is it? What was stolen and what is the value?
12 THE COURT: Well, let me read the cases.
13 Obviously I want to be right, too. I don't want to try it
14 four times.
15 MR. McCRARY: There is a Court of Criminal
16 Appeals' case, in particular. And it's not amongst those I
17 gave you. But it's fairly recent. And what they did is they
18 indicted a guy for burglary of a habitation and they alleged
19 with intent to commit a felony offense like sexual assault. I
20 think while in the house the guy also took something, so they
21 also did a theft. One is a first degree felony; and, as you
22 know, the other is a second degree. He was tried on both and
23 convicted on both.
24 He went to the Court of Criminal Appeals and the
25 State's argument was different elements: One is you commit
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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 31st day of March,
15 2014.
16
17
18
19 /s/ Richard E. Roberts, Jr.
20 ______________________________________
RICHARD E. ROBERTS, JR., CSR
21 Texas CSR 5411
Official Court Reporter
22 274th District Court
P.O. Box 311905
23 New Braunfels, Texas 78131-1905
Expiration: 12/31/14
24
25
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1 VOLUME 2
2 Non-Jury Docket
3 March 13, 2014
4 PAGE VOL.
5 Excerpts of CR2013-366 ............................3 2
6 Reporter's Certificate ...........................10 2
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TRANSCRIPT COVER SHEET 2nd SUPPLEMENTAL CLERKS RECORD VOL I OF I 1
INDEX 2
CAPTION 3
APPLICATION FOR WRIT OF HABEAS CORPUS (FILED MAR 19, 2015) 4-8
LETTER FROM CHRISTOPHER L. GRAHAM (FILED APR 27, 2015) 9
MEMO FROM SANDRA MAGGIANI (FILED MAY 13, 2015) 10
DESIGNATION OF MATTERS IN CLERKS RECORD (FILED MAY 19, 2015) 11
BILL OF COST 12
CLERKS CERTIFICATE 13
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April 8, 2014
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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
_____________________________________________
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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.
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1 APPEARANCES
2 MR. DANIEL A. PALMITIER
SBOT NO. 24062934
3 Comal County DA's Office
150 N. Seguin Street
4 Suite 307
New Braunfels, Texas 78130
5 Telephone: (830)221-1300
Attorney for State
6
MR. CHRISTOPHER L. GRAHAM
7 SBOT NO. 24047549
Lauren Graham & Associates
8 700 N. St. Mary's Street
Suite 1400
9 San Antonio, Texas 78205
Telephone: (469)605-6846
10 Attorney for Respondent
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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
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1 VOLUME 3
2 EXHIBIT VOLUME
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1 ALPHABETICAL INDEX OF WITNESSES
2 Direct Cross V. Dire
3 Brown, Cynthia 39 v2 42 v2
Chenoweth, Chelsie 29 v2 32 v2
4 Graham, Christopher 43 v2 47 v2
Reininger, Nick 36 v2
5 Roberts, Rick 10 v2 24 v2
28 v2 28 v2
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1 EXHIBITS
2 EXHIBIT NO. DESCRIPTION OFFERED ADMITTED
3 State's 1 Reporter's Records 13 13
February 25/March 13,
4 2014
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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
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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
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* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *
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.
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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
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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
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1 EXHIBITS
2 EXHIBIT NO. DESCRIPTION MARKED OFFERED ADMITTED
3 State's 1 Reporter's Record 13 13 13
Feb. 25/March 13, 2014
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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
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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.
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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.
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1 March 13th, again at 9:38 in the morning,
2 Ms. Chenoweth's case was called. And Mr. Graham was not
3 present. The Court was notified that Mr. Graham would be
4 sending someone else in his place. That person did not show
5 up. And Ms. Chenoweth, when questioned, had not spoken to Mr.
6 Graham either. On that day the defense counsel or anybody from
7 his office wholly failed to show.
8 That is what the evidence will show after
9 testimony today, Your Honor.
10 THE COURT: All right. You may proceed.
11 MR. GRAHAM: Your Honor, am I permitted to give
12 an opening or --
13 THE COURT: Sure. Go ahead.
14 MR. GRAHAM: Your Honor, the fact of the matter
15 is this was a case that was -- I attempted to set on the 13th
16 of February, 2014, and called the Court in order to set Ms.
17 Chenoweth's case. It was supposed to be set on that day
18 because I had other cases that were set on the same day.
19 However, when I got here on the 13th of February, I was told by
20 the Court that, no, Ms. Chenoweth's case was not on the Court
21 docket. The fact of the matter is insofar as when her
22 subsequent court case was set on the 25th of February I didn't
23 hear her name called. You know, I wanted to verify with the
24 Court, you know, basically that her case had been called. At
25 that point I said, "Look, you know, has Ms. Chenoweth's case
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1 been called?" And I guess some kind of notation was made in
2 the Court docket that, you know, I was here and was ready to
3 proceed.
4 Shortly thereafter the case was set up for plea
5 and was ready to go. The plea paperwork in Ms. Chenoweth's
6 case had been signed and was ready. And for whatever reason,
7 the Court took a lengthy recess of an hour or longer.
8 Ms. Chenoweth's case was not gotten to after several attempts.
9 I had to notify the Court again twice that "Hey, look, we have
10 got a plea that's ready to go here."
11 And so the Court then said that the case was
12 going to be reset until 1:15 that day. So, in other words, we
13 have got a situation here where I have got a plea that's ready
14 to go and I'm waiting to get it done for hours and hours. And
15 I'm a solo practitioner. I had another consultation in San
16 Antonio, thought that I could get it done and come back. I was
17 a few minutes late. The Court indicated to me that there were
18 other contested matters that were going to be taken up prior to
19 the plea anyway. And so I got here and, lo and behold, the
20 other cases had been dismissed. My client was gone. And
21 that's pretty much what happened. It wasn't a situation about
22 any kind of intentional disrespect to the Court. It was just a
23 matter of trying to get back from San Antonio here between that
24 lunch period when the Court recalled the case at 1:15.
25 So, as a result of that, surely it's not a
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1 situation where there is any obstruction of the Court's, you
2 know, attempts at resolving cases. By all means, I was trying
3 to get that done. It was just a scheduling issue with the jail
4 down in San Antonio. As a result of that, I don't think that
5 any kind of contempt should be issued or actually held in
6 effect here today.
7 Thank you.
8 THE COURT: You may proceed.
9 RICK ROBERTS,
10 having been first duly sworn, testified as follows:
11 DIRECT EXAMINATION
12 BY MR. PALMITIER:
13 Q. Please state your name for the record.
14 A. Rick Roberts.
15 Q. And how are you employed, Mr. Roberts?
16 A. I am the official reporter for the 274th Judicial
17 District Court.
18 Q. How long have you been in that position for?
19 A. January 1st of this year was 15 years.
20 Q. Who is the judge for that particular court?
21 A. District Judge Gary Steel.
22 Q. How long have you worked with him for?
23 A. Also that -- we started January 1, 1999. That is
24 the day he took the bench.
25 Q. So working with him over 15 years, have you got to I
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1 guess realize a pattern in how his docket is called?
2 A. I do.
3 Q. Okay. To become a certified court reporter, what
4 kind of qualifications, education do you need?
5 A. First, you get your certification from some
6 accredited school that basically is a proficiency that you
7 receive that qualifies you to take a State test that's given
8 quarterly. At that point you have to pass three phases, 225
9 words a minute Q&A, 200 jury charge, and 180 literary. If you
10 pass those -- all three at 95 percent, you become certified by
11 the State of Texas.
12 Q. And did you do such?
13 A. I did.
14 Q. So what certifications do you hold?
15 A. I hold that certification as an official court
16 reporter for the State of Texas.
17 Q. Now, on February 25th and March 13th, what were you
18 doing?
19 A. We were handling a nonjury docket here in Comal
20 County.
21 Q. And were you recording the record that was going on
22 those two dates?
23 A. I was.
24 Q. How did you do such?
25 A. I do it by court reporting machine and I also have
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1 got a laptop. And that's how I report all of our jury and
2 nonjury cases.
3 Q. Is part of your job preparing records for court
4 cases?
5 A. Yes, it is.
6 Q. Did you prepare a record in this particular case?
7 A. Yes, I did.
8 Q. What were the dates you prepared the record for?
9 A. If memory serves, February 25th, 2014, and March 13,
10 2014.
11 Q. How many copies of the records did you prepare?
12 A. I prepared an original and two copies.
13 Q. Who did you give those copies to?
14 A. The original and one copy to you, and then I mailed
15 a copy to opposing counsel.
16 Q. How did you mail the copy to opposing counsel?
17 A. Certified return receipt.
18 Q. And did you return -- did you receive a return
19 receipt?
20 A. Yes, sir.
21 Q. Do you remember when it was delivered to him?
22 A. I want to say on or about April the 2nd. I also
23 sent both counsel an electronic copy via e-mail.
24 Q. So when you say "both counsel," is that Mr. Graham
25 as well?
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1 A. Yes.
2 MR. PALMITIER: May I approach the witness, Your
3 Honor?
4 THE COURT: Yes.
5 (State's Exhibit No. 1 marked)
6 Q. (By Mr. Palmitier) I'm showing you what's been
7 marked as State's Exhibit No. 1. Do you recognize this?
8 A. I do.
9 Q. And who prepared it?
10 A. I prepared this.
11 Q. Okay. Did you prepare it with a device that was
12 capable of making an accurate reflection of the record on those
13 two dates?
14 A. Yes, I did.
15 Q. Has it been changed or altered in any way?
16 A. No, sir.
17 MR. PALMITIER: If the record would just reflect
18 I'm showing State's No. 1 to Mr. Graham for inspection.
19 MR. GRAHAM: I'll object to relevance on the
20 basis it contains the whole docket. I don't think it's
21 relevant so far as this Show Cause hearing goes. In addition
22 to that, it contains hearsay statements.
23 THE COURT: That's overruled. It's admitted.
24 MR. PALMITIER: State offers Exhibit 1.
25 Q. (By Mr. Palmitier) Look at State's 1. Can you
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1 please tell the Court what time Judge Steel started calling the
2 docket on February 25th?
3 A. With permission, I'm going to unbind this so that I
4 can take a look at the time stamps, with your permission.
5 Okay. On page three of Volume 1, the setup time, that first
6 time that's indicated, 8:22:22AM, is the time that I came in
7 and set up my machine -- my laptop and my machine to prepare
8 for the day. And then the next time that shows up, the 9:06
9 a.m., is the time when he began calling the docket.
10 Q. You said you have worked with Judge Steel for 15
11 years?
12 A. That's correct.
13 Q. And you are familiar with his practice of how he
14 calls the docket?
15 A. I am.
16 Q. Could you please, for the record, describe how the
17 docket is typically called?
18 A. Yes. The -- what he normally does is he will call
19 the civil docket first. In cases -- or in dockets when we have
20 both civil and criminal, he will call the civil docket first,
21 take announcements. If there are announcements of ready, he
22 will go ahead and hear those if they are short. Short
23 announcements of ready he will go ahead and try and get those
24 heard. That can take 10 or 15 minutes.
25 Once he's taken any short announcements of ready
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1 or uncontested announcements, he will then call the criminal
2 docket and take announcements for the criminal docket.
3 Q. Okay. Once he takes announcements for the criminal
4 docket, does he have any sort of preference on how he takes up
5 the cases?
6 A. His main preference is custody over non-custody
7 cases. His priority is that he likes to resolve all custody
8 cases, if possible, before the noon hour so they transport --
9 you only have to make one transport for the day and don't have
10 to come back after lunch.
11 Q. Now, on this particular day, without getting into
12 specifics, was there anything out of the ordinary on how the
13 docket was called?
14 A. My memory, no. I think it went the traditional way.
15 Q. Okay. Refer you to your report or record. On page
16 21, please tell the Court, for the record today, what time
17 Ms. Chenoweth's case was first called.
18 A. That would be 9:24 a.m.
19 Q. Looking to your record, was Ms. Chenoweth present?
20 A. The defendant answered present or answered, "Here."
21 Q. Okay. Did Mr. Graham announce present for
22 Ms. Chenoweth?
23 A. It appears that he was not present. The defendant
24 then responds to the Court whether her counsel was here. Her
25 response was, "I haven't heard from him."
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1 Q. What did the Court do at that point?
2 A. His response is, "Give him a call and prepare a show
3 cause."
4 Q. Now, you are aware that Mr. Graham did show up later
5 that morning?
6 A. He did show up later that morning, yes, sir.
7 Q. I refer you to your record at page 34. Can you
8 please tell the Court today what time Mr. Graham announced for
9 Ms. Chenoweth?
10 A. Yes. That would be 9:38 a.m.
11 Q. If you can tell from the record, what was Mr. Graham
12 and Ms. Chenoweth's case there set for that day?
13 A. I believe it was set for arraignment. Let me verify
14 that. Yes, that is correct.
15 Q. What did the Court let Mr. Graham know at that
16 moment when he announced?
17 A. Usually on first settings for arraignment the Court
18 advises counsel to either get a waiver of arraignment from
19 their client or he will arraign them. And that is what was
20 stated here on page 35. The Court says, "For arraignment. I
21 need you to say hello to the DA's office. If there is nothing
22 we can do today, then get me a waiver of arraignment or bring
23 your client up and let me arraign her."
24 Q. Okay. What did Mr. Graham respond?
25 A. "Sounds good. Thank you very much, Your Honor."
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1 Q. What did the Court then start taking up after --
2 after that discussion with Mr. Graham?
3 A. Let's see. It looks like he's continuing to look
4 for people that didn't answer the docket call, and then looks
5 like he took a sentencing.
6 Q. Now, once the Court has handled all of the matters
7 that it has before it in the morning, what does the Court
8 typically do?
9 A. The Court will then usually take a break once he's
10 taken the announcements of ready on the first docket call. And
11 sometimes we get announcements of ready during the morning and
12 those usually are taken before any breaks are done. If there
13 is nothing else to be heard or ready, the Court at that time
14 will take a break.
15 Q. Looking at the record, can you tell what time the
16 Court took a recess that morning?
17 A. Recess was taken at 9:48 a.m.
18 Q. And do you know what time the Court started back up?
19 A. Yes. It was 10:48 a.m.
20 Q. Once the Court started back up, what did the Court
21 start doing?
22 A. The Court's usual procedure -- and did so in this
23 case -- is to recall the docket on any of the cases that have
24 not been resolved.
25 Q. Refer you to page 48 of your record.
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1 When did he address Mr. Graham?
2 A. It that would be at 10:52 a.m.
3 Q. What was the discussion that took place at that
4 time?
5 A. Discussion had to do -- Mr. Graham was announcing
6 that they had a plea ready in this case.
7 Q. Okay. And what did the Court let Mr. Graham know at
8 that time?
9 A. He had -- he had actually scratched that case off of
10 his docket once he had spoken to Mr. Graham earlier. And so
11 now he was aware that there was a plea ready.
12 Q. Could he take up the plea at that time?
13 A. He did not take it up then.
14 Q. Why was that? What was in front of it?
15 A. Either previous announcements of ready or, again,
16 custody cases take priority.
17 Q. Was there any other hearing set for that morning
18 that took precedent?
19 A. Yes. There was one in the original announcement on
20 the docket call. There was an attorney out of Bexar County who
21 had a trial starting at 1:30. I believe he also had a custody
22 case here, a contested Motion to Revoke. And I think the
23 announcement was approximately one hour.
24 Q. And the contested hearing -- was that defendant in
25 custody?
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1 A. Yes. That is my recollection.
2 Q. Did that take precedent over Mr. Graham's matter
3 with Ms. Chenoweth?
4 A. That's correct.
5 Q. Now, I refer you to page 63 of your record. Please
6 tell the Court today what the Court did before it broke for
7 lunch.
8 A. At that point, once he recognized that it was 11:10
9 a.m. and that he had an announcement of one hour on a contested
10 Motion to Revoke, he advised the three remaining cases to
11 return at 1:15 while he resolved the Motion to Revoke and took
12 a lunch break.
13 Q. Once the Court reconvened at 1:15, was there
14 anything else in front of Ms. Chenoweth's case?
15 A. His custom is -- which is he recalled the docket.
16 Of course, there were only three cases left. He took those
17 announcements and then began hearing the cases that were ready.
18 Q. What time did the Court start back up after its
19 lunch recess?
20 A. The Court started up at 1:34 p.m.
21 Q. And was Mr. Graham present at 1:34 p.m.?
22 A. He was not present.
23 Q. Was Ms. Chenoweth present?
24 A. Yes, she was present.
25 Q. Okay. Did the Court call her case to be heard?
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1 A. Yes, he did.
2 Q. And what happened next?
3 A. The defendant announced, "I'm here." And the
4 bailiff then announced to the Court that Mr. Graham has not
5 come back yet.
6 Q. Did you all wait for Mr. Graham?
7 A. No, sir, we began hearing the cases that were ready
8 to be heard.
9 Q. Okay. What time did you all finish the cases that
10 were being heard?
11 A. 1:46 p.m.
12 Q. And, before that, did the Court have a conversation
13 with Ms. Chenoweth?
14 A. Actually, at 1:46, once the last case that was ready
15 was heard and resolved, then he had the discussion with
16 Ms. Chenoweth.
17 Q. And what was that discussion?
18 A. That discussion is: "Ms. Chenoweth, we're going to
19 reset your case. I was clear. He was to be back here at 1:15.
20 I will get your attorney's attention and I will do that before
21 I leave the courthouse today. Thank you. You're excused."
22 Q. At 1:46 you all convened court?
23 A. We -- right, adjourned.
24 Q. Okay. At 1:46, did you see Mr. Graham in this
25 courtroom?
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1 A. At 1:46 he was not present in the courtroom.
2 Q. What did you start doing at 1:46?
3 A. What I do when we finish for the day I start
4 breaking down my equipment. If there were any exhibits that
5 were marked during any contested hearings or anything like
6 that, I get with the clerk and make sure those are all turned
7 over and then break down.
8 Q. How long does it take you to break down?
9 A. Approximately 10 minutes, give or take, 10 to 12.
10 Q. Did Mr. Graham eventually show up?
11 A. Yes, he did.
12 Q. Can you estimate about what time that was?
13 A. I'm going to say it was -- I was almost through
14 breaking down. I don't remember if I had any exhibits or if I
15 dealt with the clerk on anything that day. So approximately
16 10, 12 minutes after we adjourned.
17 Q. And, by estimation, what time was that?
18 A. That would make it 1:55 p.m.
19 Q. Now, on March 13th, you were recording the record as
20 well?
21 A. That's correct.
22 Q. Was Ms. -- what was Ms. Chenoweth's case set for on
23 that day?
24 A. I don't see it stated here, but my guess would be
25 that it would be for arraignment.
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1 Q. Now, was her name called on the docket that morning?
2 A. Yes, it was.
3 Q. Looking at your record, can you see what time it
4 was?
5 A. Yes, 9:38 a.m.
6 Q. And was Ms. Chenoweth present?
7 A. She was.
8 Q. Was Mr. Graham present for her?
9 A. He was not present.
10 Q. What is the discussion the Court had with
11 Ms. Chenoweth?
12 A. With Ms. Chenoweth?
13 Q. Correct.
14 A. The Court states, "Is your attorney retained or
15 appointed?"
16 The defendant replies, "Appointed."
17 The Court: "Mr. Graham is appointed?"
18 Defendant: "Uh-huh."
19 And the Court says, "Stay put."
20 Q. Does the Court ask her if she's had any sort of
21 contact with Mr. Graham? I refer you to page 6 of your report,
22 record.
23 A. The Court asks Ms. Chenoweth, "Ms. Chenoweth, who is
24 coming over from his office?"
25 The defendant responds, "I don't know."
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1 The Court: "You don't know?"
2 The defendant: "No, sir."
3 The Court: "When your attorney gets here, tell
4 him I would like to talk to him."
5 Her response was, "I don't even know if he's
6 coming. I haven't talked to him at all since the day I -- when
7 I came back after lunch and he never showed up."
8 Q. Looking at the record for the rest of March 13, did
9 Mr. Graham ever show up that day?
10 A. He did not.
11 Q. Did he ever -- did someone from his office ever show
12 up that day?
13 A. No, sir.
14 Q. Did anybody announce for Ms. Chenoweth?
15 A. No, sir.
16 Q. Was Mr. Graham to be present on March 13th for any
17 other reason?
18 A. I don't believe so.
19 Q. Do you know if he was to be there on a Show Cause
20 hearing?
21 A. I'm sorry. Yes, he was.
22 Q. Did he announce for that?
23 A. No, sir.
24 MR. PALMITIER: Pass the witness, Your Honor.
25 THE COURT: Mr. Graham?
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1 CROSS EXAMINATION
2 BY MR. GRAHAM:
3 Q. You were talking about basically you were the court
4 reporter on the 13th of March; is that correct?
5 A. That is correct.
6 Q. Okay. And also indicated that basically I did not
7 show up at that particular Show Cause hearing. Isn't that
8 right?
9 A. That's correct, sir.
10 Q. But it's also true that I filed a Motion for
11 Continuance insofar as the Show Cause hearing goes because I
12 had prior court appearances in other counties. Are you aware
13 of that?
14 A. I believe there was mention of that, yes, sir.
15 Q. In other words, it wasn't a situation where there
16 was just a blatant disrespect for the Court date. Isn't that
17 correct?
18 A. To my knowledge, no.
19 Q. Okay. In addition to that, at that particular time
20 I had not been personally served or you don't know if I had
21 been personally served with the Show Cause Order at that point
22 prior to the 13th. Isn't that right?
23 A. That is correct. I did not know.
24 Q. Okay. So, in other words, you couldn't say one way
25 or another if it had taken place, the personal service, or not.
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1 Isn't that correct?
2 A. That is correct.
3 Q. All right. Now, you were also talking about the
4 court appearance insofar as the February 25th. Is that
5 correct? You were also the court reporter on that particular
6 day?
7 A. I was.
8 Q. Okay. And, typically, how long does it take for
9 pleas to be completed, an agreed plea?
10 A. He gets through them pretty quick. I want to say
11 five minutes, give or take.
12 Q. Five minutes. Okay. But, on this particular day,
13 the plea for Ms. Chenoweth was not reached. Isn't that right?
14 It wasn't handled on that particular day, was it?
15 A. It ultimately was not.
16 Q. Okay. Now, you were talking about earlier also that
17 you were very familiar with the court procedures and how the
18 docket is called. Is that correct?
19 A. That is correct.
20 Q. And so is it typical in a court procedure where, you
21 know, there is an announcement issue on a case -- typically,
22 does the Court issue Show Causes for all of those attorneys who
23 don't announce ready for whatever reason a few minutes after
24 the docket call in the morning?
25 A. His typical procedure is that if it's been a
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1 recurring problem he will do it initially. A lot of times he
2 will ask staff to prepare one. If --
3 MR. GRAHAM: I'm going to object to that, Your
4 Honor.
5 THE COURT: I'll sustain.
6 Listen to -- just a second. I'll do it.
7 Listen to the question and answer just that
8 question.
9 THE WITNESS: Yes, sir.
10 Q. (By Mr. Graham) So, in other words, when you say
11 that it's not a regular practice to issue a Show Cause Order
12 for attorneys that for whatever reason might announce ready,
13 you know, a few minutes after the 9:00 o'clock docket call --
14 that's not a regular practice, is it?
15 A. Repeat your question, please.
16 Q. It's not a regular practice for an attorney who
17 issues or says ready shortly after 9:00 o'clock docket call --
18 it's not a regular court practice to issue a Show Cause Order
19 for all of those attorneys, is it?
20 A. Not to issue one, no, sir.
21 Q. Okay. And so, on that particular day, were there
22 any other instances of individuals who may not have announced
23 ready for whatever reason where their offices had to be called?
24 A. That's usually -- it usually does happen, yes.
25 Q. Okay. Were Show Cause Orders issued for those
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1 individuals?
2 A. I would have to go back and look through the docket.
3 Q. Okay. You don't know?
4 A. I don't know.
5 Q. Now, you had also indicated there were a number of
6 contested hearings that were actually set on that particular
7 day; is that correct?
8 A. I believe there was one.
9 Q. Okay. And those contested hearings basically take
10 precedent over pleas, right?
11 A. If they are custody cases, yes. He does normally
12 try to take the shorter cases first and then the longer cases
13 are put towards the back of the docket.
14 Q. Okay. But you just indicated a second ago that a
15 plea just takes five minutes, so that would be one of those
16 short cases. Isn't that correct?
17 A. That is correct.
18 Q. But, on this particular day on the 25th, my plea or
19 the Chenoweth plea was not dealt with, even though it was a
20 short case; isn't that correct?
21 A. That is correct.
22 Q. Now, there was also a contested hearing that was
23 actually scheduled to take place after lunch as well; isn't
24 that correct? After 1:15, right?
25 A. That is incorrect.
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1 Q. And so what remaining cases were there? Were they
2 all pleas?
3 A. There were three cases and they were -- none had
4 announced contested.
5 MR. GRAHAM: I'll pass the witness.
6 THE COURT: Anything else?
7 MR. PALMITIER: Just briefly, Your Honor.
8 REDIRECT EXAMINATION
9 BY MR. PALMITIER:
10 Q. You mentioned typically a Show Cause will not be
11 issued for people who are late in the morning?
12 A. Not -- not -- I believe the way he phrased the
13 question was early in the day.
14 Q. Is it typical in your experience over 15 years for
15 an attorney not to show back up after being ordered to after a
16 lunch break?
17 A. No, it's not typical.
18 Q. What about the next hearing not showing up?
19 A. That was the first.
20 MR. PALMITIER: Pass the witness.
21 THE COURT: Anything else, Mr. Graham?
22 MR. GRAHAM: Yes.
23 RECROSS EXAMINATION
24 BY MR. GRAHAM:
25 Q. Insofar as the Court date on the 13th of March, do
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1 you have any knowledge that suggests that, you know, I actually
2 attempted to move that court date but was prohibited from doing
3 so?
4 A. I have no knowledge of that.
5 Q. Okay.
6 MR. GRAHAM: No further questions, Your Honor.
7 THE COURT: Anything else?
8 MR. PALMITIER: No further questions.
9 THE COURT: Is he excused?
10 MR. GRAHAM: Yes, Your Honor.
11 THE COURT: You're excused. Thanks for being
12 here. You'll put the exhibit back together?
13 THE WITNESS: Yes, sir, I will.
14 THE COURT: Next?
15 MR. PALMITIER: The State calls Chelsie
16 Chenoweth.
17 (The witness entered the courtroom and was
18 placed under oath by the Court.)
19 THE WITNESS: Yes, sir.
20 THE COURT: Have a seat up here, please. Scoot
21 up close to the microphone so everybody can hear you.
22 Go ahead.
23 CHELSIE CHENOWETH,
24 having been first duly sworn, testified as follows:
25 DIRECT EXAMINATION
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1 BY MR. PALMITIER:
2 Q. Could you please state your name for the record?
3 A. Chelsie Chenoweth.
4 Q. Ms. Chenoweth, how do you know Mr. Graham?
5 A. He's my Court-appointed attorney.
6 Q. Okay. On February 25th, were you supposed to be
7 here in court?
8 A. Yes.
9 Q. What was that for?
10 A. Some charges that I had.
11 Q. Was Mr. Graham supposed to be here with you?
12 A. Yes.
13 Q. What time did you get here, if you remember, on
14 February 25th?
15 A. Probably around 9:00 o'clock.
16 Q. Was Mr. Graham here with you?
17 A. Not yet.
18 Q. Had you heard from him that day?
19 A. No.
20 Q. Had you heard from him at all prior to that?
21 A. The only time I talked to him was one time when he
22 became my lawyer and I had called him and he talked to me about
23 my case. That was the only time we talked ever.
24 Q. Did he let you know he was going to be late that
25 day?
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1 A. No.
2 Q. Do you remember around what time he showed up?
3 A. I really don't. It was at least 30 minutes later.
4 Q. Okay. You were set for arraignment that day. What
5 did you want to do that day?
6 A. I was ready to get it -- get sentenced.
7 Q. Okay. Were you able to do that?
8 A. No. I got a reset.
9 Q. Do you remember what time you were told to be back
10 in the afternoon that day?
11 A. 1:15.
12 Q. What time were you back that day?
13 A. 1:15.
14 Q. What time did Mr. Graham come back that day?
15 A. I don't know. The judge released me before he came
16 back.
17 Q. Did he call you to tell you he was going to be late?
18 A. No.
19 Q. That afternoon?
20 A. No.
21 Q. Did anybody from his office call you?
22 A. No.
23 Q. Do you know where he was?
24 A. No.
25 Q. What did you want to do that afternoon?
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1 A. Wanted to get sentenced. Wanted to get everything
2 over with.
3 Q. Were you able to do that that day?
4 A. No.
5 MR. PALMITIER: Pass the witness, Your Honor.
6 THE COURT: Cross-examine.
7 CROSS EXAMINATION
8 BY MR. GRAHAM:
9 Q. I represented you in your case before. Isn't that
10 correct, Ms. Chenoweth?
11 A. Yeah.
12 Q. Isn't it true basically that the plea paperwork in
13 the case was done during the morning time? Isn't that right?
14 A. Uh-huh.
15 Q. But, for whatever reason, the Court did not hear
16 your case. Isn't that right?
17 A. Yeah, he sent us to lunch.
18 Q. And also isn't it correct that basically I had to
19 remind the Court several times about, hey, look, you have got a
20 case that's ready for plea prior to the lunch hour? Isn't that
21 correct?
22 A. Yeah, you did.
23 Q. Because the Court basically continued on several
24 instances to skip over your case. Isn't that right? They
25 didn't call your case?
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1 A. Oh, yeah. That day?
2 Q. Okay. That's correct.
3 A. Yeah, uh-huh.
4 Q. In the morning time. Okay.
5 A. Uh-huh.
6 Q. And so basically it was a situation where, you know,
7 we had the plea paperwork done early in the morning, but yet
8 you were forced to wait until the afternoon time. Isn't that
9 correct?
10 A. Yes.
11 Q. And you had to come back to court. Isn't that
12 correct?
13 A. Uh-huh.
14 Q. Okay. Did the Court, when they indicated that you
15 had to come back at 1:15 -- did they make any kind -- did the
16 Court make any kind of a statement that, well, if you don't
17 come back at a certain time that there could be a contempt?
18 Did the Court say that?
19 A. I don't think so.
20 Q. All he said was to be back at 1:15; isn't that
21 right?
22 A. Uh-huh, yeah.
23 Q. And the Court also indicated there were other cases
24 that it had in addition to yours after the lunch hour. Isn't
25 that right?
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1 A. Yeah.
2 Q. Did the Court make any kind of statements about any
3 contested hearings or other hearings that were going to happen
4 after the lunch hour?
5 A. No.
6 Q. But they indicated that there were other cases?
7 A. Yeah.
8 Q. Isn't that correct? Okay. So there was no
9 indication about when actually your case was going to go after
10 1:15?
11 A. Right.
12 Q. Correct?
13 A. Right.
14 Q. You didn't have any specifics on that, right?
15 A. Right.
16 Q. And since the Court didn't provide me with any
17 specifics, would you agree with me that I wouldn't know
18 specifically when your case would have been taken up after the
19 lunch hour?
20 A. Yeah.
21 MR. PALMITIER: Objection; speculation.
22 MR. GRAHAM: I'll withdraw that, Your Honor.
23 THE COURT: Okay.
24 Q. (By Mr. Graham) And -- so isn't it true that you
25 were actually appointed a new Court-appointed attorney for your
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1 case?
2 A. Yeah.
3 Q. Is that right?
4 A. Uh-huh.
5 Q. And you also indicated you wanted to get this case
6 resolved on the 25th in the morning time as expeditiously as
7 possible, right?
8 A. Yeah.
9 Q. Okay. Now, would you say that the appointment of a
10 new attorney for your case -- would that have delayed the
11 process or made it quicker?
12 A. I think it made it quicker because yesterday I
13 finished.
14 Q. Okay.
15 A. Just one time.
16 Q. Right. But this could have been something that
17 could have been resolved before. Isn't that right?
18 A. Yeah.
19 Q. Okay.
20 MR. GRAHAM: I'll pass the witness at this time,
21 Your Honor.
22 THE COURT: Anything else?
23 MR. PALMITIER: No further questions, Your
24 Honor.
25 THE COURT: Is she free to go?
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1 MR. GRAHAM: Yes, Your Honor.
2 THE COURT: You're free to go. Thank you for
3 having to come down.
4 Call your next.
5 MR. PALMITIER: State calls Nick Reininger.
6 (The witness entered the courtroom and was
7 previously sworn by the Court.)
8 NICK REININGER,
9 having been first duly sworn, testified as follows:
10 DIRECT EXAMINATION
11 BY MR. PALMITIER:
12 Q. Can you please tell us -- tell the record how you
13 are employed?
14 A. I'm employed by the Comal County District Court.
15 Q. And which court is that?
16 A. The 207th, 274th, the 433rd and the 22nd.
17 Q. How long have you been in that position?
18 A. Approximately three years.
19 Q. Do you remember what you were doing on February
20 25th? I'm sorry. March 13th.
21 A. Yes. I was working for Judge Gary Steel.
22 Q. March 13th and February 25th.
23 A. 274th District Court bailiff.
24 Q. And particularly on February 25th, did you remember
25 what was going on that day?
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1 A. It was a mixed docket, nonjury criminal and civil
2 cases.
3 Q. Did you have any contact with Mr. Graham that day?
4 A. Yes, I did.
5 Q. And could you please explain on the record what the
6 contact was?
7 A. Mr. Graham had a case, a criminal case on the
8 docket. He came in in the morning docket, checked in with me.
9 He was running a little bit late. He made contact with his
10 defendant. I saw him throughout the day. We broke for lunch
11 approximately around 12:00 o'clock. We came back at 1:15.
12 There was a couple of cases left for the afternoon docket. We
13 concluded the business of the docket that day for Judge Steel
14 and Mr. Graham's case was the only case left.
15 Q. Did Mr. Graham show up for the afternoon?
16 A. Eventually he did. Not -- not at the time we came
17 back.
18 Q. What time was everybody supposed to be back at?
19 A. Judge Steel told all the remaining cases on the
20 docket personnel to be back at 1:15.
21 Q. Do you remember what time Mr. Graham showed up?
22 A. It was around 2:00 o'clock, maybe a few minutes
23 before 2:00 o'clock. Judge Steel had just left the bench when
24 Mr. Graham came in.
25 Q. Did you have a discussion with him at all at that
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1 point?
2 A. I did because the judge had left the bench and Mr.
3 Graham's client had already been released. Mr. Graham asked me
4 where his client was. I said that the judge had excused her.
5 I told Mr. Graham I would ask Judge Steel if he would like to
6 talk to him in chambers. I went back in chambers. I asked
7 Judge Steel if he would like to see Mr. Graham. He said that
8 he would not like to see him, to inform Mr. Graham that he was
9 going to issue a Show Cause.
10 So I came back out in the courtroom. I told Mr.
11 Graham he did not wish to see him at this time, that a Show
12 Cause Order was going to be issued.
13 Q. Did Mr. Graham have any explanation as to where he
14 had been or why he was late?
15 A. No. He responded to me, "Is the judge really going
16 to issue a Show Cause Order for me being 45 minutes late?"
17 I said I really had no say-so in the matter.
18 That's just what he told me to relay to Mr. Graham.
19 MR. PALMITIER: Pass the witness, Your Honor.
20 THE COURT: Mr. Graham?
21 MR. GRAHAM: I have no questions, Your Honor.
22 THE COURT: All right. You can step down.
23 Thank you. You can remain in the courtroom.
24 He's released from the Rule now, isn't he?
25 MR. GRAHAM: That's correct, Your Honor.
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1 THE COURT: All right. Thank you.
2 MR. PALMITIER: And the only other witness I
3 have, Your Honor, is a Cynthia Browne. It's in relation to the
4 second Show Cause Order.
5 THE COURT: All right. Cynthia Browne.
6 (The witness entered the courtroom and was
7 placed under oath by the Court.)
8 THE COURT: Come up here and have a seat,
9 please.
10 CYNTHIA BROWNE,
11 having been first duly sworn, testified as follows:
12 DIRECT EXAMINATION
13 BY MR. PALMITIER:
14 Q. Would you please state your name for the record?
15 A. Cynthia Browne.
16 MR. GRAHAM: I'm going to object to the State
17 proceeding on this particular Show Cause. The only Show Cause
18 Order that I had notice of was the one insofar as Ms. Chenoweth
19 goes, Your Honor.
20 THE COURT: That's overruled.
21 Go ahead.
22 Q. (By Mr. Palmitier) How do you know Mr. Graham?
23 A. He's my Court-appointed attorney.
24 Q. Is he still your Court-appointed attorney this day?
25 A. I fired him the last time I was in court.
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1 Q. The last time you were in court, do you remember
2 what day that was?
3 A. Last week. I don't remember what day.
4 Q. Do you remember why you were here?
5 A. I have no idea why I was here.
6 Q. Were you set to be here for a jury trial?
7 A. Yes, on March 31st.
8 Q. Now, do you remember that day? We called the docket
9 and we called your name for announcements?
10 A. Yes.
11 Q. What happened?
12 A. My attorney wasn't here.
13 Q. Were you here?
14 A. Yes.
15 Q. Were you ready for trial?
16 A. Yes.
17 Q. Okay. Had you spoken to your attorney before that
18 day?
19 A. Probably like a month prior maybe, maybe three
20 weeks. I'm not sure.
21 Q. Okay. Had he told you that he was not going to be
22 there that day?
23 A. No.
24 Q. Had anybody from his office told you he was not
25 going to be there that day?
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1 A. No.
2 Q. Were you otherwise ready to proceed to trial?
3 A. Yes.
4 Q. Do you feel your attorney was ready to proceed with
5 trial?
6 A. Yes.
7 Q. Had you all discussed it before?
8 A. Yes.
9 Q. Had not for him not being here, you would have been
10 ready to go to trial?
11 A. Yes.
12 Q. And were we able to do that that day?
13 A. No.
14 Q. Why is that?
15 A. I don't know why I was called for court that day
16 because I had my trial on March 31st. I was kind of confused
17 why I was now coming on March 31st.
18 Q. Okay. On that day that you were in court, did you
19 ever hear from your attorney?
20 A. No.
21 Q. Okay. Or anybody from his office on that day?
22 A. No.
23 Q. Okay. What about the day of trial? Did you hear
24 from your attorney?
25 A. Yes.
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1 Q. And were you ready to proceed to trial that day?
2 A. No. It got reset to May 12th.
3 MR. PALMITIER: Pass the witness, Your Honor.
4 THE COURT: Cross-examine.
5 CROSS EXAMINATION
6 BY MR. GRAHAM:
7 Q. Ms. Browne, I don't know if you are actually aware
8 of this, but your case was actually far down the list insofar
9 as cases that were going to trial. Are you aware of that?
10 A. Yes.
11 Q. In other words, it wasn't likely that your case was
12 actually going to go to trial because the Court also had a
13 capital murder case that was going on that particular day.
14 Isn't that right?
15 A. Yes.
16 MR. GRAHAM: I'll pass the witness.
17 THE COURT: Anything else?
18 MR. PALMITIER: No further questions.
19 THE COURT: You can be returned. Thank you for
20 coming.
21 Anything else?
22 MR. PALMITIER: No, Your Honor. No further
23 witnesses at this time.
24 THE COURT: Mr. Graham?
25 MR. GRAHAM: I would like to give some testimony
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1 in this case, Your Honor.
2 THE COURT: Sure. Come on up.
3 MR. GRAHAM: Whether I do it here or on the
4 witness stand -- how would you like me to do it?
5 THE COURT: Let's do it up here on the witness
6 stand.
7 MR. GRAHAM: Sure.
8 (The witness was placed under oath by the
9 Court.)
10 THE COURT: Have a seat, please.
11 CHRISTOPHER GRAHAM,
12 having been first duly sworn, testified as follows:
13 DIRECT TESTIMONY
14 THE WITNESS: It's just a narrative format?
15 THE COURT: Introduce yourself just like you
16 were calling a witness.
17 THE WITNESS: Sure. My name is Christopher
18 Graham. I'm an attorney. I have been Court-appointed on
19 several cases, the Chelsie Chenoweth case and also the Cynthia
20 Browne case.
21 And in response to the State's -- or actually
22 the Show Cause Orders that were issued in the Chelsie Chenoweth
23 case, I just wanted to start with how this whole process began.
24 Basically, on the 12th of February, 2014, I
25 tried to set this case in order to get it done and also pled
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1 out on the 13th because I had other cases that were set on that
2 same day. Okay. I was actually unable to do so because when I
3 got to court on the 13th what happened was the Court indicated
4 that somehow the case was not on the Court docket. This was a
5 situation where the Chenoweth case probably could have been
6 dealt with on that day. I was then told the case was reset to
7 the 25th of February, in which case I then appeared again on
8 the Chenoweth case in order to see if we could get it resolved.
9 My understanding is the case was set for an arraignment
10 setting.
11 And at that point I didn't hear the Chenoweth
12 case actually had been called insofar as the docket goes. And
13 so I walked in the court and I said, "Well, has the case been
14 called?"
15 And the Court then makes the notation.
16 Shortly thereafter I negotiate with the
17 prosecutors, were able to work out a deal for her insofar as a
18 plea goes. The plea paperwork was signed. And, for whatever
19 reason, I had difficulty in order to get the plea actually
20 heard. This is about maybe 9:30 or maybe 9:45, somewhere in
21 there. It didn't take very long in order to get the plea
22 paperwork done in the case.
23 And so basically the Court then goes on a break.
24 I'm trying to get the plea done and actually heard by the
25 Court. So this is a situation where basically from almost
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1 10:00 o'clock until about 1:15 when the Court reconvenes after
2 lunch I'm trying to get my plea done. It doesn't make sense to
3 me as to why it's taking so long in order to get this plea done
4 in order to move this case.
5 In order to use my time efficiently, I'm a --
6 I'm a solo practitioner. And I had a case that was actually
7 set for trial in the next few days in San Antonio. I figured
8 that once the Court broke for the lunch period from about, you
9 know, 12:00 o'clock to about 1:15 or, you know, give or take,
10 11:45 to about 1:15 I would be in a position to go ahead and
11 visit one of my clients who was in the Bexar County jail. So
12 that's what I tried to do because I had an investigator who was
13 going to be talking to him also at that time. So I wanted to
14 make the most effective use of my time.
15 So I talked to my client down there in
16 preparation for trial in Bexar County. Then I come back. And,
17 for that reason, I was a few minutes late. Now, I didn't think
18 that it was going to be a problem because, No. 1, the Court did
19 not tell me that, you know, you are automatically going to get
20 a Show Cause issued.
21 In addition to that, based on the Court and how
22 it functioned before, you know, things don't typically start on
23 time in this particular court. So I thought that I had a few
24 minutes in order to spare.
25 In addition to that, the Court also indicated
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1 that there were -- there was a contested hearing that was going
2 to be heard shortly after the lunch hour. So I thought that I
3 would be okay.
4 And so I came back and then I tried to discuss
5 the matter with the Court about, you know, "Where is my client
6 at? What's going on here? This is the reason for the delay."
7 And then I get hit with a Show Cause.
8 Now, I've practiced law for quite some time in
9 various counties and I have never seen a situation where an
10 attorney gets a Show Cause, you know, after one issue. And
11 it's an excusable issue. And we're talking about just a few
12 minutes late.
13 Now, the thing about it is this is not a
14 situation where there was any kind of deliberate disrespect to
15 the administration of the court by no means. It was a
16 situation where, you know, I have got to move around to
17 different counties in order to take care of cases that are set
18 for trial. So I did show up, you know, albeit it a few minutes
19 late.
20 And insofar as the March 13th, 2014 hearing
21 goes, the Court issued me a court date in order to be here.
22 However, I had already had other court dates that were set that
23 I could not move in Williamson County. So, as a result of
24 that, I filed a Motion for Continuance. It was denied. I
25 tried via telephone in order to talk to the Court about moving
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1 the Show Cause date and that was again denied.
2 Now -- so I think that -- based on the
3 circumstances, I think that a Show Cause or at least a contempt
4 finding in this case is inappropriate. It's not a situation
5 where there was any kind of intentional disregard for Court
6 orders.
7 THE COURT: Cross-examine?
8 CROSS EXAMINATION
9 BY MR. PALMITIER:
10 Q. What time did you show up on February 25th?
11 A. Shortly after 9:00 o'clock.
12 Q. Exact time?
13 A. I don't know the exact time.
14 Q. Were you there for the docket call when it started?
15 A. I didn't hear her name called. I didn't hear Ms.
16 Chenoweth's name called. That's why I had to approach the
17 bench in order to make sure that, you know, I was registered as
18 being here.
19 Q. The reason you didn't hear her name called -- is
20 that because you weren't there?
21 A. Because I was out in the hall.
22 Q. Did you let Ms. Chenoweth know that you were out in
23 the hall?
24 A. No.
25 Q. Why were you out in the hall?
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1 A. I believe it was a phone call I was taking.
2 Q. Who was that phone call with?
3 A. It was one of my clients out of Dallas.
4 Q. What was the name?
5 A. Ms. Harper I believe.
6 Q. What is her first name?
7 A. I don't know. I don't know what the first name is
8 off the top of my head.
9 Q. Do you know what case it relates to?
10 A. It was -- I think it was a breach of contract case
11 or something like that.
12 Q. Do you know which court it was set in?
13 A. Court No. 3 I believe out of Dallas.
14 Q. She is the plaintiff or the defendant in that case?
15 A. I think she's plaintiff.
16 Q. Who is the defendant in that case?
17 A. Not sure.
18 Q. So what time did you come in the courtroom on
19 February 25th?
20 A. I would say maybe about 9:15, somewhere in there.
21 9:15, 9:20 I would say.
22 Q. You just notified the Court today that you had lots
23 of things to do that day?
24 A. I don't understand "lots of things." What do you
25 mean?
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1 Q. You said you were a busy solo practitioner. You had
2 to be in San Antonio. You had to go to the jail?
3 A. Right. I had a case, State versus Kochanski (sic)
4 that was set, you know, just a few days away. It was
5 imperative that I talk to him in jail on that day. I have got
6 to make, you know, productive use of my time. I just can't sit
7 around during the lunch hour, so I wanted to make productive
8 use of my time.
9 Q. Did you notify the Court that you had to go do that?
10 A. No, I thought that I could actually make it. I
11 thought that I could go there and make it back.
12 Q. When you realized that you weren't going to make it
13 back, did you notify the Court that you were going to be late?
14 A. I did not. I wasn't really concerned about it
15 because I figured that the Court had, you know, several
16 hearings, contested hearings that were going on, and the Court
17 wouldn't take up Ms. Chenoweth's case immediately.
18 Q. You got to look at the record this morning, correct?
19 A. The one that you issued in evidence? That one?
20 Q. And you got a copy of it, right?
21 A. I believe I got a copy via e-mail, if it's the same
22 document.
23 Q. Okay. And also by certified mail?
24 A. Not by certified mail. I think someone from my
25 office may have picked it up, but I did get the copy by e-mail.
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1 Someone sent it to me via e-mail.
2 Q. Have you had a chance to review it?
3 A. I reviewed it, more or less.
4 Q. Okay. Going over what the Court had on its docket
5 that day, there were custody hearings it had to take up and the
6 contested hearing?
7 A. Correct.
8 Q. And that was it. All of the cases left in the
9 afternoon were just you and two other people.
10 A. Perhaps there were other cases that were actually --
11 perhaps there were cases that were resolved. I'm just going by
12 what the Court said. In other words, they were contested
13 hearings. That's what I heard before I left to lunch.
14 Q. But if you read the record and what the Court said
15 that day, they had a contested hearing they were taking up
16 before lunch. There were no contested hearings taken up after
17 lunch.
18 A. I don't believe that I heard before or after. I
19 heard contested hearing and that was going to be taken up
20 before my case is what -- I didn't know when it was going to be
21 taken up. I would assume that it would have been taken up
22 after lunch. That's what I assumed.
23 Q. But after reading the record and hearing it in court
24 today, there was no contested hearing that afternoon, was
25 there?
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1 A. I didn't actually peruse -- I didn't look at it in
2 detailed fashion. I got it, but I kind of skimmed through it.
3 Q. Would you like a chance to look at it right now?
4 A. Sure.
5 Q. If you could, look at it for its accuracy as to
6 whether or not there was a contested hearing scheduled in the
7 afternoon on that day.
8 A. What was your question again? Your question is to
9 see whether or not there was a contested hearing in the
10 afternoon? Is that your question?
11 Q. Was there a contested hearing that was announced for
12 that afternoon?
13 A. Okay. Page 62 talks about the last custody case
14 I'll take before -- or that last case I will take before we
15 start the contested hearing is Rick Anthony Cruz. I've got a
16 punishment in Lopez still pending. I've got Martinez we're
17 about to start.
18 You know, this is shortly before I believe we
19 actually broke for lunch, so all of this stuff was going to
20 take place prior to, you know, dealing with the Chenoweth plea
21 is what my understanding was.
22 Q. What time was that at?
23 A. This is -- this is between 10:53 and 11:27 a.m.
24 Q. If I refer you to page 62 of the record --
25 A. Right.
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1 Q. Okay.
2 A. Are you asking me?
3 Q. Yes.
4 A. Right. I'm talking about page 62 where he's talking
5 -- he's got all of this -- these other cases that were going to
6 proceed. And this is after I was asking about the status of
7 the Chenoweth case after the Court had neglected to call it.
8 Q. Okay. Right after you say, "Your Honor, if the
9 Court can take up -- Ms. Chenoweth as well," what does the
10 Court say?
11 A. The Court says, "Eventually. It's not a custody
12 case. I have a custody case that's ready." So --
13 Q. You say, "Okay." What does the Court say then?
14 A. "How long is that going to take? It's already ten
15 after 11:00."
16 Q. What does Mr. McCrary say?
17 A. "I don't think it will take too long."
18 Q. Okay. So you have got a contested hearing that the
19 prosecutor announces is not going to take too long. Is that
20 correct?
21 A. Right. That's what it says.
22 Q. And then what does the Court say?
23 A. The Court says, "Well, I'll tell you what. I'm
24 going to reset -- for those counsel that weren't here at 9:00
25 o'clock, Lopez will be reset for 1:15. I'm going to do
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1 Martinez."
2 And then the Court talks about Mr. Rodriguez.
3 "I've got to get this other one done. Reset for 1:15."
4 So it looks like to me there was a lot of other
5 cases that were -- that were going to go.
6 Q. By "a lot of other cases," he says, "Well, I'll tell
7 you what. I'm going to reset -- for those counsel that weren't
8 here at 9:00, Lopez" -- that's one, right?
9 A. Right.
10 Q. He's going to do Martinez right now?
11 A. Right.
12 Q. "Castilleja. I know you were here, Mr. Rodriguez,
13 but I've got to get this other one done. Reset for 1:15.
14 Chenoweth will be reset for 1:15."
15 So how many cases is that that's reset for 1:15?
16 A. And also it says that I will -- I'll take this
17 contested hearing. Rick Anthony Cruz is what he's also talking
18 about as well, as the Court says. So I guess four or five
19 cases, four cases, give or take.
20 Q. To be reset at 1:15?
21 A. That was my understanding.
22 Q. If you read the record right there --
23 A. Right.
24 Q. -- how do you understand that to be he's resetting
25 the contested hearing after 1:15?
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1 A. It doesn't say when he's going to reset it. It just
2 says we're going to start a contested hearing.
3 Q. So what time did you show back up after lunch?
4 A. I would say maybe about 1:35, give or take, because
5 it took them awhile in order to actually transport the prisoner
6 or the defendant from his custody -- from his cell in San
7 Antonio. And they were running behind, and also the traffic
8 getting back. But I did get back.
9 Q. Who was that that you were visiting in San Antonio?
10 A. It was Kochanski.
11 Q. What was the first name?
12 A. Anthony Kochanski.
13 Q. Do you know the docket number for that case?
14 A. No, I don't --
15 Q. Do you know what court it's set in?
16 A. Off the top of my head, no.
17 Q. What was so important that day that you had to go
18 visit him?
19 A. Well, there was an investigator who was helping me
20 prepare for trial in this case and he had an imminent trial
21 setting. And the only time I could meet with the investigator
22 and also get with him and Kochanski was at that time during
23 lunch. And I wanted to make productive use of my time at that
24 time. I just didn't want to sit out here and just do nothing.
25 Q. Was it actually set for trial?
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1 A. It was.
2 Q. Did it go to trial?
3 A. It did not on that particular day. It was moved.
4 But considering the amount of time that Mr. Kochanski had been
5 in jail, there was a high probability it was going to go at
6 that time.
7 Q. Once again, did you notify the Court that you were
8 going to be running late?
9 A. I did not, no.
10 Q. Did you ask for a reset to go handle the matter in
11 San Antonio?
12 A. A reset? A reset for the Chenoweth case?
13 Q. Right.
14 A. I did not, no, because I thought that I could get
15 back in time and the contested matters would be completed and I
16 could come back and deal with it.
17 Q. And it's your testimony here today that you showed
18 back up at 1:35?
19 A. I don't know the exact time, but it was a few
20 minutes after -- it was a little bit of time after 1:15. I
21 didn't log it down or anything like that.
22 Q. You did not tell the bailiff that you were 45
23 minutes late?
24 A. No, I did not. It was before 2:00. I know that.
25 Before 1:50, probably before 1:45 I would say.
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1 Q. You have had a chance to look at the record, right?
2 A. Correct.
3 Q. You saw what time it ended at?
4 A. Well, I know what the court reporter said. However,
5 he wasn't in the courtroom when I got here.
6 Q. So his testimony was false earlier then?
7 A. That's correct.
8 Q. And so would the bailiff's testimony be false?
9 A. I did speak to the bailiff. Insofar as his time
10 estimates when I got here, I don't know if that's accurate.
11 But when I got here, I don't recall seeing the court reporter
12 here.
13 Q. Move forward to the March 13th date. Why were you
14 supposed to be here?
15 A. Presumably for a Show Cause setting, Show Cause
16 setting in the Chenoweth
This text is long and has been trimmed here. Open the source document for the complete record.