Ex Parte Krupps

CAMPBELL, Judge,

dissenting.

This writer derives no particular pleasure from engaging in the “sport” of dissent writing, but the majority opinion in the instant case presents such an inviting target that I felt compelled to dust off my hunting license and don one of those marvelous British safari hats for the occasion.

I begin this sojourn by stating that I am in complete agreement that “the traditional rising in unison of persons present in a court can reasonably be thought to contribute to the functioning of the court,” and that “it is a way of marking the beginning and end of the session and probably serves to remind all that attention must be concentrated upon the business before that court, the judges control of the courtroom must be maintained with as little burden on him as possible, and there must be silence, except as the orderly conduct of business calls for speech.” In re Chase, 468 F.2d 128, 132 (7th Cir.1972), quoting from United States ex rel Robson v. Malone, 412 F.2d 848 (7th Cir.1969).

But the majority opinion with both its writing and research style strikingly, nay hauntingly, deja vu, elevates the “failure to rise in unison requirement” to per se contumacious conduct, and ultimately, direct contempt. This conclusion defies the dearth of case law in this area, and in doing perhaps the most mischief, defies one of those fundamental tenets of a free society which separates us from other mammals — the due process of law.

I. The Conduct A. Applicant Krupps

I am in agreement with the majority’s disposition of the conduct of applicant, Krupps. 1 Judge Floyd confronted Krupps in chambers and admonished him to rise when the judge entered the courtroom. Krupps, in defiance of this direct order from the judge, then intentionally refused to rise when the judge entered the courtroom. According to the federal case law cited in the majority opinion, this is clearly direct, contumacious conduct which is summarily punishable, because it was “personally observed by the judge” (In re Oliver, 333 U.S. 257, 275-276 , 68 S.Ct. 499, 509 , 92 L.Ed. 682 ) after the judge had personally confronted and admonished Krupps. 2

B. The Six Other “contemptuous” Applicants

The majority opinion begins to unravel like a bad suit of clothes, when it postulates that court personnel, such as bailiffs, and implicitly, one imagines, court reporters, clerks, docket coordinators, probation officers, prosecutors, etc., may, through some sort of agency theory, observe contumacious conduct, report said conduct to the unsuspecting judge, thereby magically transforming constructive contempt into direct contempt, all in the name of and by the authority of being “officers of the court.”

Judge Floyd stated in the documents of commitment that the applicants were held in contempt for “being disrespectful by failing to rise upon the entrance of the Court after being duly admonished and warned of consequences of their failure to do so.” 3 But the gravamen of contempt *161 contains two elements which the judge must have personally observed to have found direct contempt: 1) an admonishment and warning of the consequences of failing to rise and 2) a failure to rise. I now examine the record to determine whether Judge Floyd was present and personally observed both elements for the six applicants.

Judge Floyd clearly observed the second element when he personally observed all of the applicants fail to rise on June 14, 1985. However, the record reflects that six of the applicants (H. Eddington, H. Matthews, V. Rose, L. Rose, R. Henley and J. Henley) did not receive an admonishment and warning of the consequences of failing to rise in the presence or hearing of Judge Floyd. See n. 3, infra. At no time was Judge Floyd present when these applicants were admonished and warned of the consequences of failing to rise.

The circumstances surrounding the direct contempt conviction of the six applicants who were not given an admonishment and warning in the presence of Judge Floyd are analogous to the circumstances in Johnson v. Mississippi, 403 U.S. 212 , 91 S.Ct. 1778 , 29 L.Ed.2d 423 (1971). See also Ex parte Ratliff, 117 Tex. 325 , 3 S.W.2d 406 (1928). In Johnson, supra, the Supreme Court reversed a contempt judgment because of due process violations. In addition to the trial court’s failure to take immediate sentencing action, the Court noted:

“Moreover, from this record we cannot be sure that Judge Perry was personally aware of the contemptuous action when it occurred. The State’s version of what happened is described as follows in its motion that petitioner show cause why he should not be punished for contempt:

‘[T]he Sheriff and Deputy Sherrif Hayward seized Robert Johnson and immediately carried him before the Circuit Judge, Marshall Perry, and related to the Judge what had transpired. (Italics added)’ [emphasis in original]

As we said in In re Oliver, 333 U.S. 257, 275-276 , 68 S.Ct. 499, 509 , 92 L.Ed. 682 ,

‘If some essential elements of the offense are not personally observed by the judge, so that he must depend upon statements made by others for his knowledge about these essential elements, due process requires ... that the accused be accorded notice and a fair hearing_Id., 91 S.Ct. at 1780 .

Judge Floyd, by relying upon information received from his bailiff for his knowledge of the contemptuous conduct of six of the applicants, did not personally observe all of the elements of the contempt. Therefore, the contempt was in the nature of a constructive contempt. I believe that six of the applicants (H. Edgington, H. Matthews, V. Rose, L. Rose, R. Henley and J. Henley) should have been accorded the due process required in a constructive contempt adjudication.

C. The Logical Import of Today's Majority Holding

Significantly, Krupps was at least given the opportunity to express to Judge Floyd his reason for not rising in the courtroom. Krupps replied obliquely that he was a “follower of Christ.” The judge requested that Krupps elaborate, and implied that something could be worked out by allowing Krupps to remain outside the courtroom when the Judge entered. Krupps declined and, in fact, expressed his intent to defy the judge again, which he subsequently did.

What of the other six applicants? The majority says that the judge, through Krupps, offered them the same alternative that had been offered to Krupps. Does this make Krupps an “officer of the *162 court?” The record is silent as to whether Krupps conveyed any message from the judge to any of the other six applicants. But even if the record affirmatively showed that Krupps did convey such a message, would the failure of the six applicants to rise in unison then constitute contempt of Judge Floyd, or would it constitute contempt of Krupps as an “officer of the court”?

The majority opinion simply cannot square its reasoning or holding with any sense of due process. The six applicants other than Krupps were given no admonishment, no alternative, and no explanation by the judge of the court. To favor them with the same summary treatment as Krupps is tantamount to standing the law of contempt on its bruised and battered ear. The logical conclusion to be drawn from the majority opinion is that the failure of spectators to rise in unison in a courtroom when a judge enters same constitutes direct contempt, punishable summarily without a hearing. To the physically handicapped — the deaf person, the paraplegic, and to those persons who have little or no command of the English language, I can only advise — avoid Texas courtrooms.

II. Was the length of the punishment given to Applicant Krupps an abuse of discretion?

The Legislature has restricted the sentencing power of Texas courts in contempt cases by limiting punishment to a fine of not more than $500, or not more than six months confinement in county jail, or both. V.A.C.S., art. 1911a, § 2(a). However, where the use of direct contempt is involved, the Supreme Court has held:

“Appellate courts have here a special responsibility for determining that the power is not abused, to be exercised if necessary by revising themselves the sentences imposed. This Court has in past cases taken pains to emphasize its concern with the use to which the sentencing power has occasionally been put, both by remanding for reconsideration of contempt sentences in light of factors it deemed important, and by itself modifying such sentences, [citations omitted] The answer to those who see in the contempt power a potential instrument of oppression lies in assurance of its careful use and supervision, not in imposition of artificial limitation on the power.” Green v. United States, 356 U.S. 165, 188 , 78 S.Ct. 632, 645 (1958).

This Court has broad powers to entertain original writs of habeas corpus. Art. V, § 5, Tex. Const.; Ex parte Davis, 171 Tex. Cr.R. 629, 353 S.W.2d 29, 32 (App.1962). I believe that the careful review by this Court of claims of excessive direct contempt sentences falls within that broad power. 4 Such supervision in contempt cases is no less compelling than the constant review that we give to claims of excessive bail. See Ex parte Davila, 623 S.W.2d 408 (Tex.Cr.App.1981); Ex parte Rubac, 611 S.W.2d 848 (Tex.Cr.App.1981).

The Supreme Court has used several factors to determine whether a contempt sentence is appropriately within the discretion of a trial judge. Persistency of the defendant in repeating the contumacious conduct is an important consideration. Yates v. United States, 355 U.S. 66 , 78 S.Ct. 128 , 2 L.Ed.2d 95 (1957). “Moreover, the court should consider ‘... the extent of the willful and deliberate defiance of the court’s order [and], the seriousness of the consequences of the contumacious behav-ior_’” Id., 78 S.Ct. at 134, quoting United States v. United Mine Workers, 330 U.S. 258, 303 , 67 S.Ct. 677, 701 , 91 L.Ed. 884 (1947).

Examining Krupps’ conduct in view of the criteria set forth in Yates, supra, I *163 believe that a sentence of thirty days is disproportionate to the persistency, willfulness and seriousness of the conduct and is therefore excessive, and I would remand to the trial court for reassessment of a punishment that fits the conduct. 5

MILLER, J., joins.

. The punishment that Krupps received will be discussed, infra.

. All emphasis is supplied throughout by the author of this opinion unless otherwise indicated.

. The trial court did not deliver this warning in person. Nor was he present when the bailiff delivered this warning. In his affidavit before this Court, respondent Judge Floyd stated:

"I advised Deputy Collins to inform Mr. [the applicants] that if they continued to show disrespect for the Court by not standing when Court convenes, I would hold them in contempt; and place them in jail for 30 days. Deputy Collins returned to the courtroom to inform the [the applicants] of my decision.

*161 Again, they informed Deputy Collins they would not stand. Deputy Collins advised me of their decision and I decided to let them ‘sleep on it’ without further discussion once we had recessed until 9:00 am on June, 1985. "... [the next morning,] Deputy Collins advised them that the Court would hold them in contempt and sentence them to 30 days in jail if they refused to stand when the Judge entered the courtroom_

"Deputy Collins advised the Court again that they would not stand.”

. While it is trae that the Legislature has limited the broad sentencing power of trial courts through Article 1911a, supra, there are no standards for determining when a sentence, though within the statutory range, would be considered excessive. In addition, there is no direct appeal from a contempt conviction. Jacobs, supra. Therefore, in reviewing direct contempt sentences, we should adopt the criteria set forth in Yates , [infra.] Without these criteria, a trial court could sentence a contemnor to six months in jail and a $500 fine and avoid review, no matter how insignificant the contemptuous conduct.

. Courts have reduced contempt sentences that resulted from a defendant’s refusal to rise upon the judge’s entrance on a number of occasions. In Malone, supra, the court reduced a 30 day sentence to four hours and a 15 day sentence to two and a half hours. In United States v. Abascal, 509 F.2d 752 (9th Cir.1975), the court reduced a 90 day sentence to two weeks, though the conduct there included more than the mere refusal to rise. In Comstock v. United States, 419 F.2d 1128 (9th Cir.1969), the court affirmed a sentence of 15 days in jail, but the conduct included more than the refusal to rise. In Chase, supra, the court reduced a ten month sentence to 30 days, though the defendant had refused to rise 99 separate times.