# Ex Parte Daniels

> Court of Criminal Appeals of Texas · January 14, 1987 · 722 S.W.2d 707

URL: https://www.frixlaw.com/law-library/cases/9862779

## Case

- **Full name:** Ex Parte Pamela Board DANIELS
- **Court:** Court of Criminal Appeals of Texas
- **Decided:** January 14, 1987
- **Citations:** 722 S.W.2d 707; 1987 Tex. Crim. App. LEXIS 498
- **Precedential status:** Published
- **Opinion:** Dissent by Clinton
- **Judges:** McCormick, Campbell, Clinton, Miller, Teague, Duncan
- **Cited by:** 37 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9862779

## How later opinions describe it (automated extraction)

- recognizing that it is necessary to require testimony or the production of evidence—put forth by either a public or private prosecutor—to establish that a contempt occurred
- holding that constructive contempt requires testimony or documentary evidence to establish the contemptuous conduct

## Opinion text

CLINTON, Judge,
dissenting.
The opinion of the Court states, “At the outset of any discussion or judicial determination of the right of due process in a contempt case, it is necessary to distinguish ‘direct’ contempt from ‘constructive’ contempt." 1 Concerning that exercise at the threshold, elsewhere I have observed:
“The notion seems to be that once the proper light [of classification of kind and nature of contempt] is turned on given active and passive conduct, one will know he is seeing a particular type of contumacious conduct and then is enabled to critique it according to its narrow contextual classification and surrounding traditional trappings. Sometimes, however, a problem defies classification by label, and thus may not be resolved by rote.”
In my view this is one of those problems. 2
The written order of contempt recites, inter alia, that after a hearing in the fami *713 ly law matter applicant “was ordered by this Court to be removed from the Courtroom for causing a disturbance at the bench.” 3 According to the brief on behalf of the judge, at the courtroom door applicant “tried to strike the Master of the Court in the head with her purse or briefcase at which time the bailiff threw [applicant] against the wall and had to tackle [applicant].”
In her brief applicant contends “that it was only after being told of an alleged incident in the doorway to the courtroom— only after relying on the word of the bailiff, the Master, and possibly others — that the judge found Applicant in contempt.” [emphasis by applicant]. To that the brief for the judge correctly responds that the record does not reflect he had any discussion with anyone, but elsewhere states:
“Although Judge Boyer expressed no knowledge of the attempt to assault the Master of the Court, Judge Boyer was aware that Applicant had done something at the courtroom door which disrupted the Court’s business.”
In pronouncing findings in his order of contempt inter alia the judge stated, “This conduct was committed within an area which was within the presence of the Court and where the Court could hear and observe the conduct” — not that he did.
In the event, regardless of what the judge did or did not hear or see of the “second disturbance” — that at the entrance to the courtroom — according to applicant, she was detained in a conference room for four hours; the judge was preparing the order of direct contempt, says his brief— until he convened court for a contempt proceeding. Already bereft of counsel in the primary matter, perforce applicant again had to represent herself.
*714 After calling for the court to be in order, the judge announced, “The Court has made certain findings concerning [the family law matter].” Denying her request to record the proceedings, he then stated into the record findings and order of the Court and promptly ordered her committed, viz:
“THE COURT: She is remanded to jail.
[APPLICANT]: May I make a statement?
THE COURT: No, you may not.”
Principally relying on Ex parte Aldridge, 169 Tex.Cr.R. 395 , 334 S.W.2d 161 (Tex.Cr.App.1960), the majority reasons that her contumacious conduct was committed “in the presence of the court.” Ergo, the matter is a “direct contempt.” Let us revisit Ex parte Aldridge, supra.
Honorable Paul McCollum was Judge Presiding of the court in which a criminal case was proceeding through jury selection to trial. There had been circulated in and around the courthouse, including a area where prospective jurors were being kept, a “news” publication critically mentioning the trial, Judge McCollum and his relationship with attorney for the accused. Learning of that, Judge McCollum conferred with counsel for the parties, concluded that a fair trial could not then be held, discharged the venire and postponed the trial; then he initiated an investigation “as to the propriety of a contempt proceeding.” Al-dridge, 334 S.W.2d at 162-163 ..
The State instituted the contempt proceeding against Aldridge “by filing a complaint in the district court seeking to have the relator adjudged in contempt of court” for publishing and circulating a “news” publication deemed offensive by nearly all affected parties, and the opinion of the Court reproduces at length those allegations charging the publication was contemptuous. Aldridge, at 163-164. Though the opinion does not say when, a contempt proceeding came on for trial before a different judge, Honorable J.H. Star-ley; relator defended on constitutional grounds of freedom of the press and denial of due process. Id., at 164. Judge Starley rendered the judgment of contempt based on extensive findings of facts made by him for the court.
“At the outset, let it be understood that we are not committed to the proposition that this is a case of constructive contempt — that is, one occuring outside the presence of the court — as distinguished from direct contempt, which occurs in the presence of the court.”
Aldridge, at 165.
On original submission, as the majority opinion here points out, the Aldridge court determined, “The court is present whenever any of its constituent parts are engaged in the prosecution of the business of the court, which constituent parts include the judge, the courtroom, the jury, and the jury room.” Ibid. Though the offensive publication was not actually distributed and circulated in the courtroom, “the undisputed evidence shows that the publication was circulated and placed in the immediate presence of those prospective jurors who were waiting [in the place assigned them] outside the courtroom in the corridors of the courthouse ... before being called to be examined and selected upon the jury then in the process of being selected.” Ibid. Accordingly, the Court found “presence of the court extended to and included the prospective jurors and the place assigned to them to wait.” Ibid. Thus if the trial court correctly found that the publication had “interfered with the due administration of justice in a case which was then on trial,” then “direct contempt was shown to have been committed in the presence of the court ...” Ibid.
Turning to address the findings made by the judge assigned to hear the contempt proceeding the Court found they were supported by ample evidence, and so held:
“The conclusion is reached that the trial judge was authorized to reach the conclusion and enter the judgment that he did in holding relator in contempt of court.”
Aldridge, at 167.
By now the point of this close review of Aldridge should be obvious: Though the *715 Court labeled it a case of “direct contempt,” as outlined and described by the Court, Judge McCollum, counsel for the parties and Judge Starley handled the proceedings from beginning to end in a form of constructive contempt!
Writing for the Court on rehearing, Judge Morrison recognized and acknowledged that “this proceeding appears to have been initiated and tried on the theory that relator was guilty of constructive contempt ..., id., at 167. Accordingly, having reexamined the record and alluding to additional evidence of the part played by relator in the affair, the Court concluded that “the State proved that relator published the contemptuous matter which constitutes the basis for this proceeding,” ibid. The motion for rehearing was therefore overruled. Id., at 168.
In the instant cause alleged contemptuous conduct took on a form that is not susceptible to easy classification as either constructive contempt or direct contempt. Clearly a “disturbance” occurred at an entrance to the courtroom in which applicant was involved. While the majority opinion says that the judge felt “compelled to interrupt court business and intervene in the activities which took place at the courtroom entrance,” and that “it was necessary to further interrupt the court’s business by calling a recess,” I find no support for that conclusion — unless the majority means that the judge recessed to investigate the matter by speaking to the bailiff and others and then prepared his order of contempt. After a lapse of time the judge did reconvene court, state his findings of fact and conclusions of law and order of contempt he rendered for the court. What is presented here is at best a hybrid form of contempt, and a proceeding which the brief for the judge concedes was not “a hearing as to the issue of contempt.”
Regardless of its label, the ultimate question is whether the proceeding comported with requisites of due process in the premises. Codispoti v. Pennsylvania, 418 U.S. 506 , 94 S.Ct. 2687 , 41 L.Ed.2d 912 (1974) and Taylor v. Hayes, 418 U.S. 488 , 94 S.Ct. 2697 , 41 L.Ed.2d 897 (1974), have taught us that when a trial judge does not convict and sentence for various disruptive acts “as they occur,” “there is no overriding necessity for instant action to preserve order and no justification for dispensing with the ordinary rudiments of due process,” Codispoti, supra, 418 U.S. at 513, 515 , 94 S.Ct. at 1692 . “On the other hand, where conviction and punishment are delayed, ‘it is difficult to argue that action without notice or hearing of any kind is necessary to preserve order and enable [the court] to proceed with its business,’ ” Taylor v. Hayes, supra, 418 U.S. at 498 , 94 S.Ct. at 2703 . See Ex parte Martin, 656 S.W.2d 443 (Tex.Cr.App.1982).
Just as summary convictions during trial that are unwarranted by the facts, so also one like this “will not be invulnerable to appellate review” by a court “duty bound to make an independent examination of the evidence in the record.” Codispoti, supra, 418 U.S. at 517 , 94 S.Ct. at 2694 , and n. 6. Having made such an examination of the facts and applicable law, my best judgment is that to remand applicant “to the custody of the Sheriff of Harris County to serve the ordered sentence” is to sanction a denial of due process in the premises.
Applicant was not convicted and sentenced for creating the second disturbance “as it occurred.” The bailiff had been ordered by the judge only to remove her from the courtroom, and that was done. Though the majority says the judge “witnessed what he considered to be a disturbance,” clearly the judge did not then and there summarily hold her in contempt. Rather, under authority not revealed by this record, she was detained elsewhere for an extended period — four hours, according to her brief, or the time taken while the court was in recess in order for the judge to prepare and include written findings and conclusions in the order of contempt, according to the brief for the judge — before being taken back into court. By then “action without *716 notice or hearing of any kind [was not] necessary to preserve order and enable [the court] to proceed with its business.” 4
Furthermore, after the order was pronounced, though she specifically requested it, applicant was denied “an opportunity to speak in [her] own behalf in the nature of right to allocution,” and was thereby denied process that is due “[e]ven when summary punishment for contempt is imposed during trial, Taylor v. Hayes, supra, 418 U.S. at 498 , 94 S.Ct. at 1703 .
Accordingly, I respectfully dissent.
TEAGUE and DUNCAN, JJ., join.
. All emphasis is mine throughout unless otherwise indicated.
. Appearing pro se in an underlying family law matter, perhaps because applicant simply did not know how to protect it, she presents an incredibly meager record. Essentially we have a short statement of facts and a written order of "direct contempt." The first seventeen pages of the former report a lengthy colloquy among the judge of the trial court, counsel for others and applicant leading to orders that she be removed from the courtroom; the last four pages reflect a brief exchange between the judge and applicant, his pronouncing an order of contempt, signing it, having a clerk certify a copy, handing it to a bailiff, directing him to take custody of applicant and commit her to jail and, finally, denying her request to make a statement. The *713 latter contains findings of fact and conclusions of law.
Accordingly, some factual statements tending to explain what occurred are taken from uncontested or reconciled recitations in briefs of applicant and of the trial judge, respectively. See Rule 74(f), Texas Rules of Appellate Procedure.
. An exchange immediately preceding that order went to a stated determination by the court to pass the case until applicant retained counsel; she objected and announced she would "refuse to leave until I get justice,” only to be told by the judge that she would be taken bodily from the courtroom; applicant rejoined that she could not afford to hire an attorney and said, "l appeal right now." Then came the following:
“THE COURT: From what you were saying, you don’t think you will get justice from me, do you, the way I am acting?
[APPLICANT]: I thought I would.
THE COURT: You don't think so now, do you?
[APPLICANT]: You could change your ruling. You could ask counsel—
THE COURT: I didn’t ask you that question. Do you think you will get justice from this Court?
[APPLICANT]: Is this—
THE COURT: You have heard what I said.
[APPLICANT]: Is this a democratic court?
THE COURT: There is no politics in this court.
[APPLICANT]: I pay my taxes.
THE COURT: This Court tries to deal in dispatch and there is no way I can deal in dispatch with a person like you.
Remove her from the courtroom. I order you to remove this woman from the courtroom and don’t permit her to come back in. The only way you can permit her to come back in is to have counsel with her.
[The bailiff asked applicant to leave with him; she protested that "he can’t do that to me,” but was informed "he can;” the judge told the bailiff to get help if needed and to "remove her without further activity."]
[APPLICANT]: I want to take a picture of this. I don’t believe this and I object. This is not justice and I don’t accept it.
******
THE BAILIFF: Let’s go.
THE COURT: And don’t let her back in this courtroom unless she has counsel.
(Mrs. Daniels took a picture of the Judge.)
(Recess).”
The last parenthetical note of the court reporter is so ambiguous that one cannot tell whether the court or the case was "recessed.” If the court had recessed just after applicant had taken a picture of the judge, it was not engaged in business when the "second disturbance” occurred. From that notation the majority opinion infers that after the disturbance at the courtroom door the judge interrupted the court’s business "by calling a recess,” but if the court had turned to other business the court reporter should have been taking down proceedings in that other matter rather than in instant cause. Most likely the reporter was indicating a recess of the case rather than the court.
. We judicially know that Honorable Max W. Boyer is a retired trial judge. See 1 Texas Legal Directory 1985, p. 1454. Contrary to another lesson of Taylor v. Hayes, supra, despite the personal nature of stormy exchanges at the bench while hearing the family law matter, the visiting judge apparently did not consider having a local judge conduct a contempt proceeding.
"But contemptuous conduct, short of a personal attack, may still provoke a trial judge and so embroil him in controversy that he cannot hold the balance nice, clear, and true between the state and the accused....’ [citations omitted throughout]. In making this ultimate judgment, the inquiry must be not only whether there was a actual bias on respondent’s part, but also whether there was ‘such a likelihood of bias or an appearance of bias that the judge was unable to hold the balance between vindicating the interests of the court and the interests of the accused.’ ‘Such a stringent rule may sometimes bar trial by judges who have no actual bias and who would do their very best to weigh the scales of justice equally between contending parties,’ but due process requires no less."
Thus when it appears that a trial judge does become “embroiled in a running controversy with a [party]’’ and "there [is] a mounting display of an unfavorable personal attitude toward [that party], his ability and his motives, sufficiently so that the contempt issue should [be] finally adjudicated by another judge ..., [one] should [be] substituted for the purpose of finally disposing of the charges of contempt....’’ Taylor v. Hayes, supra, 418 U.S. at 501-503 , 94 S.Ct. at 2704-2705 .

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9862779. Public record. Not legal advice.