Petition for Writ of Certiorari — Murphy v. Texas

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FILED

FEB 2T 84

ALEXANDER L. STEVAS.

CLERK e

—

IN THE SUPREME COURT

OF THE

UNITED STATES

OCTOBER TERM, 1983

JAMES M. MURPHY,

Petitioner,

Vv.

THE STATE OF TEXAS,

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE COURT OF CRIMINAL APPEALS

OF TEXAS

RICHARD H. PARSONS

609 Lehmann Bldg.

Peoria, Ill. 61602

309-674-6013

ATTORNEY FOR PETITIONER

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NO.

IN THE SUPREME COURT

OF THE

UNITED STATES

OCTOBER TERM, 1983

JAMES M. MURPHY,

Petitioner,

Vv.

THE STATE OF TEXAS,

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE COURT OF CRIMINAL APPEALS

OF TEXAS

RICHARD H. PARSONS

609 Lehmann Bldg.

Peoria, Ill. 61602

309-674-6013

ATTORNEY FOR PETITIONER

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QUESTIONS PRESENTED

i. Whether the Double Jeopardy Clause

of the Fifth Amendment, made applicable to

the States by the Fourteenth Amendment, is

applicable to state criminal contempt pro-

ceedings. r

2. If so, were Petitioner's rights

against double jeopardy violated where he

was adjudged in contempt without a hearing,

imprisoned, and once again tried and convicted

for the same offenses.

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TABLE OF CONTENTS

OPINIONS BELOW... .cccccccccccccccccee 2

JURISDICTION. .......22208. ee cccccccs 2

CONSTITUTIONAL AND STATUTORY

PROVISIONS dl are ok

STATEMENT OF THE CASE........2..2222- 3-6

ARGUMENT AND REASONS FOR

ALLOWANCE OF THE WRIT.........2.2222- 7-17

WHETHER THE DOUBLE JEOPARDY

CLAUSE OF THB FIFTH AMENDMENT,

MADE APPLICABLE TO THE STATES

BY THE FOURTEENTH AMENDMENT,

IS ‘APPLICABLE TO STATE CRIMINAL

CONTEMPT PROCEEDINGS........... 7-10

WERE PETITIONER'S RIGHTS

AGAINST DOUBLE JEOPARDY

VIOLATED WHERE HE WAS ADJUDGED

IN CONTEMPT, WITHOUT A HEARING, _—

IMPRISONED, AND ONCE AGAIN

TRIED AND CONVICTED FOR THE

SAME OFFENSES......22ccceeeeee- 11-16

(A) DID JEOPARDY ATTACH? 11-13

(B) WAS JEOPARDY WAIVED? 13-16

REASONS FOR ALLOWANCE OF THE

Dh 6 64S SS OHbBOSEE KO OES BOO HERS 16-17

iii

TABLE OF CONTENTS a

(continued) ;

6 Er ee arr eee |

PROOF OF Ee ee

TABLE OF AUTHORITIES

pages

BENTON V. MARYLAND, 395 U.S. 784 (1969)... 7,16

BLACKLEDGE V. PERRY,417 U.S. 21 (1974)... 15

DOWNUM V. UNITED STATES, 372 U.S. 734

Femeelccsccecttetdts ‘pepe Perem + Eanes 12

FINCH V. UNITED STATES, 433 U.S. 676

(1977) “eee ee eee eee eee eee eeeeeeeeeeeeneenee 13

GREEN V. UNITED STATES, 355 U.S. 184

pA aR g emt yea EO a ae 12

ILLINOIS V. SOMERVILLE, 410 U.S. 458

(1973) see eeeee eee eee eee eee eeeeeenee “ee 12

MENNA V. NEW YORK, 423 U.S. 61 (1975).:.. 8,10

15,17

NORTH CAROLINA V. PEARCE, 395 U.S. 711

(1969) eee eee eoeeeeeeeeeeceeeeeeeeeeeeeeeee 9,16

SERFASS V. UNITED STATES, 420 U.S. 377

et). ) er ref © © oe frteeeneeeeeee#er*.eee#ee#keee#ee#85qe#ee#e#*#e#*#* # « 12,13

TAYLOR V. HAYES, 418 U.S. 488 (1974)..... 10,16

UNITED STATES V. BALL, 163 U.S. 662

(1896)....... eeccces eee ecccccccccccce cocce 16

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IN THE SUPREME COURT

OF THE UNITED STATES

OCTOBER TERM, 1983

JAMES M. MURPHY,

Petitioner,

¥.

THE STATE O” TEXAS,

. Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE COURT OF CRIMINAL APPEALS

OF TEXAS

Petitioner, James M. Murphy, respectfully

requests that a writ of.certiorari be issued

“to review the judgment and opinion of the

Court of Criminal Appeals of Texas, affirming

a judgment of contempt against Petitioner

rendered by the 297th Judicial District Court

of Tarrant County, Texas. A petition for

rehearing was denied on January 18, 1984,

and on January 20, 1984, the Court of Criminal

Appeals. granted a stay of the mandate for

a period of thirty days, or until February

21, 1984.

OPINIONS BELOW

The opinion of the Court of Criminal

Appeals of Texas, delivered December 14,

1983 (Ex Parte James M. Murphy, No. 69,205)

appears as Appendix A to this Petition.

The motion for rehearing was denied without

opinion.

JURISDICTION

The judgment and opinion of the Court

of Criminal Appeals of Texas was delivered

On December 14, 1983. A timely petition

for rehearing was denied on January 18, 1984.

This petition is filed within 60 days of

| that date and is therefore timely. This

Court's jurisdiction is invoked under 28

. U.S.C. §1257(3).

CONSTITUTIONAL AND STATUTORY

PROVISLONS INVOLVED

1. United States Constitution, Amendment

Five, which provides " ..[nJlor shall any

person be subject for the same offense to

be twice put in jeopardy."

2. United States Constitution, Amendment

Fourteen.

STATEMENT OF THE CASE

Petitioner is an attorney licensed to

practice law in the State of Texas. He was

held to be in -and was adjudged guilty of

direct contempt of the 297th District Court

of Tarrant County, Texas, without hearing

for failing to appear at a pre-trial and

trial setting regarding a e¢riminal case in

which he was counsel for the defendant.

Petitioner was arrested and confined in jail

pursuant to the finding of guilt by the judge

of said court. Pursuant to Texas state law

a motion was filed by Petitioner seeking

his release on personal recognizance and

a hearing before another district judge,

| which motion was granted. Petitioner was

' released from custody. Another judge was

appointed to conduct a hearing on the judgment

atthe

of contempt, which judge cited Petitioner

to appear before the court on the Leantions

charges for which Petitioner had been adjudged

guilty by the presiding judge of the 297th

District Court. Petitioner, oe to the

hearing, mov to dismiss the citation on

the ground that he had previously been placed

in jeopardy for the same offense, which motion

was denied.

Petitioner, with leave of court first

obtained, filed an original proceeding in

the Court of Criminal Appeals of Texas -by

writ of habeas corpus, contending, among

other matters, that his rights under _ the

Double Jeopardy Clause of the Fifth Amendment

to the United States Constitution had been

violated. The Court of Criminal Appeals,

while recognizing that Petitioner's rights

of due process were violated, dismissed the

double jeopardy claim as not being properly

before the court. The court also asserted,

by footnote, that Petitioner “should not

be heard to complain of a violation of his

nial seainiaia aati aT Sod

Fifth Amendment rights- erated simultaneously

apne

suant to Art. 1911a, supra." —A-timely motion

for rehearing was denied on January 18, 1984,

and the Court of Criminal Appeals stayed

the mandate for a period of 30 days, or until

February 21, 1984 (inasmuch as the 30 day

period of time expired on a weekend followed

by a heliday, February 20, 1984), to permit

the filing of this petition.

A copy of the “Commitment Order" finding

Petitioner guilty of contempt and assessing

punishment without .a hearing appears as App-

endix B to this petition.

The warrant of arrest, and return of

the sheriff executing same, appears as Append-

ix C tq. this petition.

A copy of the “Notice to Appear and

Show Cause" order issued by the appointed

juage appears as Exhibit D to this petition.

The “Judgment" entered by the appointed

judge once again finding Petitioner guilty

of contempt appears as Appendix E to this

Paes ee)

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petition. ay

The portion of the record where Petition-

er's double jeopardy claim was raised in

the first instance appears as Appendix F

to this petition.

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ARGUMENT AND

REASONS FOR ALLOWANCE OF THE WRIT

WHETHER THE DOUBLE JEOPARDY CLAUSE

OF THE FIFTH AMENDMENT, MADE APPLICABLE

TO THE STATES BY THE FOURTEENTH AMENDMENT

IS APPLICABLE TO STATE CRIMINAL

CONTEMPT PROCEEDINGS.

In Benton v. Maryland, 395 U.S. 784

(1969), this Court held that the Double Jeo+

pardy Clause of the Fifth Amendment is ap-

plicable to the States through the Fourteenth

Amendment. The right against doible jeopardy,

as this Court said in Benton, is clearly

fundamental to the American scheme of justice.

The Court of Criminal Appeals of Texas,

in its opinion below, assumed arguendo that

the provisions of the Double Jeopardy Clause

applied to this case, but withheld ruling

on the claim because it was not perfected

by verified motion under provisions of the

Texas Code of Criminal Procedure, Articles

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27.05 and 27.06. Further, the court noted

that Petitioner should not be heard to claim

a double jeopardy violation while. requesting

and receiving _.a second trial pursuant to

the Texas stdte statute governing contempts

against officers of the court. Art. 191la,

Tex. Rev. Civ. St. Thus, the Court of Crim-

inal Appeals did not dispose of Petitioner's

claim on its easits.

In Menna v. New York, 423 U.S. 61 (1975),

this Court reversed a holding of the New

York Court of Appeals affirming a conviction

while? declining to address the double jeopardy

claim. Menna was: held in contempt for failure

to testify before a grand jury and was sent-

enced to a flat 30-day's confinement.“ He

was then indicted for his refusal to answer

questions before the grand jury. Menna,

after unsuccessfully asserting his Double

Jeopardy claim, pleaded guilty. The — Court

of Appeals of New York affirmed, holding

that he had waived his double jeopardy claim

‘by his plea of guilty. This Court remanded

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the case to the Court of Appeals for a det-

ermination of Menna's double jeopardy claim

on the merits, without expressing an opinion

of that claim. The Court did note, however,

that the state had conceded that Petitioner's

— jeopardy claim was a strong one on

the merits.

The guarantee against double jeopardy

protects against a second prosecution toe

the same offense after conviction, and it

protects against multiple punishments’ for

the same offense. North Carolina v. Pearce,

395 U.S. 711 (1969), and cases cited therein.

In Pearce, it was noted that it is unfair

to use the great power given to the court

to determine sentence to place a defendant

in the dilemma of making an unfree choice,

aoa: Usb. OO. Fea. In this case, the contempt

' power of the judge of the 297th District

7 Court was utilized to hold and find Petitioner

\ guilty of criminal contempt without heering

and thereupon imprison Petitioner without

the protections of due process of law, Taylor

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v. Hayes, 418 U.S. 488 (1974), which forced

Petitioner to resort to his only remedy to

contest that power and denial of due process.

The proceedings against Petitioner were crim-

inal in nature, Menna v. New York, supra,

and thus the provisions of the Double Jeopardy

Clause of the Fifth Amendment should be made

applicable thereto. See, Taylor v. Hayes,

supra, wherein this Court described contempt

as a “petty criminal offense" for purposes

of the right to trial by jury.

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WERE PETITIONER'S RIGHTS AGAINST

DOUBLE JEOPARDY VIOLATED WHERE HE

WAS ADJUDGED IN CONTEMPT WITHOUT

A HEARING, IMPRISONED, AND ONCE

AGAIN TRIED AND CONVICTED .

FOR THE SAME OFFENSES.

(A) Did Jeopardy Attach?”

On August 23, 1983, the judge of the

297th Judicial District Court, without notice

and hearing, adjudged Petitioner in direct

contempt of court for failing to appear at

a pre-trial docket call on August 12, 1983,

and trial docket call on August 22, 1983,

assessed punishment at 72 hours in the Tarrant

County Jail and a fine of $500.00, and issued

a warrant for 2 SE arrest. On August

26, 1983, Petitioner was arrested and confined

on such warrant. Petitioner was released

on his own recognizance. Petitioner asserts

that at the point when he was adjudged guilty

of contempt, without notice and opportunity

to be heard, jeopardy “attached" for Fifth

Amendment purposes.

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It is generally held that in a jury

trial jeopardy attaches when the jury is

empaneled and sworn. Downum v. United States,

372 U.S. 734 (1963); Illinois-v. Somerville,

410 U.S. 458 (1973). In a non-jury trial,

jeopardy attaches when the court begins to

hear evidence. Serfass-v. United States,

420 U.83e- 377 t(adisr< In Serfass, the Court

reiterated that jeopardy does not attach

until a defendant is “put to trial before

the trier of facts, whether the trier be

a jury or a jucge.”" In this case the trier

of fact was the offended judge who found

Petitioner guilty of direct contempt, and

Petitioner was “put to trial” by the offended

judge on facts within the knowledge of such

judge, i.e. failure to attend court. Indeed,

Petitioner was convicted, sentenced and his

punishment commenced by incarceration. When

viewed in this light, Petiticner was subjected

to the hazards of trial and possible con-

viction, Green v. United States, 355 U.S.

184 (1957), and was at risk of the ultimate

—

determination of guilt, Serfass, supra.

In Finch v. United State, 433 U.S. 676

(1977), the District Court dismissed an infor-

mation after considering stipulated facts.

The government sought to appeal the dismissal.

The Ninth Circuit allowed the appeal, but

this Court held that, under Serfass, jeopardy

had attached, rendering the appeal by the

government barred by the Double Jeopardy

Clause. In this case, the offended judge

considered facts within his knowledge, once

again Petitioner's failure to appear, and

found Petitioner guilty of direct contempt.

When Petitioner was arrested and confined

pursuant to such determination, certainly

his liberty was in jeopardy by reason of

the proceedings instituted and conducted

-by the offended judge.

(B) Was Jeopardy Waived?"

After Petitioner was arrested, he sought

to invoke the provisions of Art. 19lla, Tex.

Rev. Civ. St., which provides, in relevant

part as follows:

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"(e) Provided however, an officer of

a court held in contempt by a trial

court, shall, upon proper motion filed

in the offended court, be released upon

his own personal recognizance pending

a determination of his guilt or innocence

by a judge of a district court, other

than the offended court. Said judge

to be appointed for that purpose by

the presiding judge of the Administrative

Judicial District wherein the aljeged

contempt occurred."

Upon his release from confinement, after

the offended judge had already adjudged Pet-

itioner guilty of contempt, Petitioner was

cited to appear before the appointed judge

to show cause “hy he should not be once again

adjudged guilty of contempt. Prior to such

hearing, as noted previously, Petitioner

protested the second and successive pro-

secution om Double Jeopardy grounds and on

the ground that the original proceedings

were void and/or voidable.

The Court of Criminal Appeals held that

Petitioner had effectively “waived" his Fifth

Amendment claim by failing to assert same

in accordance with the Texas Code of Criminal

atte

Procedure. Art. 27.05 provides, in relevant

part, as follows:

"Rh defendant's only special plea is

that he has already been prosecuted

for the same or a different offense

arising out of the same criminal episode

that was or should have been consolidated

into one trial, and that the former

prosecution:

(2) resulted in conviction...."

Art. 27.06 provides that all special pleas

shall be verified by the affidavit of the

defendant.

Petitioner sugdests that no waiver is

apparent by the above in that the Fifth Amend-

ment Double Jeopardy claim is a matter of

federal constitutional consideration, and

not a matter of state procedural requirements.

See, Menna v.-New York, supra, and Blackledge

v. Perry, 417 U.S. 21 (1974).

Furthermore, Petitioner's invocation ~

of the provisions of Art. 19lla do not operate

as a waiver of his Double Jeopardy claim.

-16-

Petitioner was imprisoned pursuant to pro-

cedures condemned in Taylor v. Hayes, supra.

His only remedy to contest that due process

violation was to invoke the provisions of

Art. 19lla (habeas would not lie because

of the remedies available under Art. 19lla).

Thus, Petitioner was afforded only one method

of review and was in the “dilemma of making

an unfree choice"--incarceration or requesting

review under Art. 19lla. See, North Carolina

v. Pearce, 395 U.S. at 724.

Nor does the due process infirmity of

the offended judge's finding of guilt operate

to vitiate Petitioner's Double Jeopardy claim.

This assertion is sustained by the reasoning

of this Court adopted in Benton v. Maryland,

supra, reaffirming the position taken in-

United States v. Ball, 163 U.S. 662 (1896),

wherein the invalidity of an indictment would

not serve to obviate a Double Jeopardy ciaim.

rit.

REASONS FOR ALLOWANCE OF THE WRIT

As suggested by Rule 1/7, Rules of the

ai Bn

Supreme Court, the following reasons are

advanced by Petitioner for allowance of the

writ:

(A) By holding that Petitioner. "waived"

his Double Jeopardy claim, the Texas Court

of Criminal Appeals has decided a federal

constitutional question in a way in conflict

with applicable decisions of this Court.

Menna v. New York, supra; Rule 17 1.(c).

(B) The question presented the Court,

whether the Double Jeopardy Clause of the

Fifth Amendment applies to "petty criminal

offenses" such as state contempt charges,

should be settled by this Court.

has, by dicta, decided a federal constitu-

tional «question, when jeopardy attaches,

in conflict with applicable decisions of

this Court. Benton v. Maryland;North Carolina

v. Pearce;Serfass v. United States, supra.

a a ee ee ee ee

CONCLUSION

‘For the foregoing reasons, Petitioner

respectfully submits that the writ of cert-

iorari should issue to review the -.decision

of the Court of Criminal Appeals of Texas.

Respectfully submitted,

RICHARD H. PARSONS

609 Lehmann Bldg.

Peoria, Illinois 61602

309-674-6013

ATTORNEY FOR PETITIONER

ale

PROOF OF SERVICE

I certify that a true copy of tien fore-

going Petition for Writ of Certiorari was

sent by United States Mail, postage pre-

paid to Mr. David Montague, Assistant District

Attorney, 200 W. Belknap, Fort Worth, Texas

76196-0201, and to the Clerk of the Court

of Criminal Appeals of Texas, Supreme Court

Building, Austin, Texas, via Federal Express,

on this 20th day of February, 1984.

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RICHARD H. PARSONS

APPENDIX A

OPINION OF THE COURT OF

CRIMINAL APPEALS OF TEXAS

EX PARTE JAMES M. MURPHY

NO. 69, 205

Delivered Dec. 14, 1983

EX PARTE JAMES M. MURPHY Habeas Corpus

Application

NO. 69,205 from TARRANT

County

OPINION

This is an application for writ of ha-

beas corpus in which the applicant, an attor-

ney, seeks relief from a judgment holding

him in contempt of the 297th Judicial District

Court of Tarrant County. Applicant was found

guilty of two counts of contempt and his

punishment was fixed at a fine of $150.00

for one count and $500.00 and one day in

the Tarrant County jail for the other.

In six grounds of -error, applicant alleges:

the order of commitment, show cause order,

and contempt judgment are void because each

was issued after a violation of due process;

the evidence is insufficient to support the

judgemnt of contempt; applicant has_ been

twice put: in jeopardy for the same acts;

the judgment of contempt is void for imposing

multiple punishments. We disagree and affirm

MURPHY .

the judgment of the trial court.

Applicant was found by the Honorable

Charles Dickens to be in "direct" contempt

for failing to attend a. pretrial hearing in

his court on August 12, 1983, and for failing.

to appear for the. eins on the merits, August

22, 1983. The offended judge assessed punish-

dont at seventy-two hours confinement in jail

and a $500.00 fine. Applicant was arrested

pursuant to sei order but was released on

personal ~ recognizance pending’ . deteckination

of his guilt sit innocence by a judge other

than the offended judge. See V.ALC.8.-. ast.

19lla, Sec. 2(c). igmiscasit was subsequently

served with the order of commitment Looudie

by the offended judge and a notice to appear

and show cause why he nha not be held in

contempt issued by the judge appointed to

preside at the 19lla, Sec. 2(¢) hearing.

There, he was found guilty of the contemptuous

acts alleged in the show cause instrument,

but his punishment was reduced to a one fey

MURPHY

jail term and a fine of $500.00.

We note at the outset that if applicant

is guilty of contempt, it is constructive

contempt and not direct contempt, regardless

of recitations in the offended judge's order

of commitment to the contrary. Ex parte Hill,

122 Tex. 80, 52 S.W.2d 367 (Tex.Cr.App. 1932);

Ex parte Supercinski, 561 S.W.2d 482 (Tex.Cr.

App. 1977). It is well settled that due pro-

cess considerations require that one who is

accused of constructive contempt will be

given "full and complete notification" of

the charges against him s0 as to afford him |.

a fair opportunity to defend against them.

See Ex parte Edgerly, 441 S.W.2d 514 (Tex.Sup.

1969).

Applicant contends inadequate notice

of charges against him denied him due pro-

cess of law. While we agree that tims 6ttand-

ed judge deprived applicant of due process

by holding him in constructive contempt with-

MURPHY 4

out adequate notice of a hearing, s/

supra; Ex parte Avila, (___S.W.2d____, No.

69,175, delivered 11/9/83), the subsequent

19lla, 2(c) de novo hearing provided adequate

constitutional due process safeguards, there-

by curing the prior violation. See Ex parte

Avila, supra. The notice to appear and show

cause delivered to applicant a full five

days prior to the de novo hearing was suf-

ficiently specific to afford complete not-

ice of allegations of contumacious conduct

and to allow a fair opportunity to defend

against them. See and cf. Ex parte Martin,

656 S.W.2d 443 (Tex.Cr.App. 1982). As such,

this negated any harm caused by the failure

of the offended judge to extend adequate

notice and hearing.

1/ The State, in its brief, readily con-

cedes that the offended judge's holding

applicant in constructive contempt without

| a hearing violates due process.

MURPHY | | 5

Applicant next challenges the _ suffic-

iency of the evidence. In the instant case,

cha record reflects Judge Charles tinaees

heard testimony from the respondent's and

applicant's witnesses which, taken collect-

ively, could reasonably be said to have pro-

ven applicant guilty of the contemptuous acts

alleged. When viewed in the light most favor-

able to the order, we find the evidence is

sufficient:to warrant Judge Lindsey's decision.

Applicant urges that the notice to ap-

pear and show cause and the judgment render-

ed thereon are at variance with the _ proof.

Specifically, applicant contends that the

proof establishes that the offended judge

reset the trial of the case in which appli-

cant failed to appear on two separate occas-

ions. On the first occasion, trial was reset

| 2/ Judge Lindsey was ordered to conduct a

hearing pursuant to Art. 19lla, 2(c), supra,

by Administrative Judge Charles Murrey.

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on August 22 from 10:00 a.m. to 2:00 p.m.,

apparently in contemplation that applicant

might belatedly appear. At 2:00 p.m. when

it was evident that the applicant would not

appear, the cause was again reset until Aug-

ust 23 at 9:00 a.m. The notice to appear

and judgment cite applicant in contempt for

failing to epiuins at pretrial on August 12

and at trial on the merits on August 22.

It is clear from the record that applicant

did indeed fail to appear on either August

12 or August 22. Any proof of contempt occur-

ring on August 23 is surplusage.. There is

no fatal variance between the allegations

in the notice to appear and judgment and the

proof offered.

Applicant complains his rights’ under

the double jeopardy provisions of the United

States and Texas Constitutions were violated.

He testified that he was arrested upon vol-

untarily entering the 297th District Courtroom

On August 26, was taken to the Tarrant County

MURPHY 7

Sheriff's office, and was then granted his

motion for release upon his personal recogni-

zance. He further testified that he was order-

ed back to ee pe motion was granted,

and remained there for three to three and

one-half hours. Applicant contends. that,

because he spent time in jail pursuant to

the offended judge's Order he cannot be again

placed in jeopardy of his liberty.

7 Assuming arguendo that the jeopardy prov-

ision of the Federal and State Constitutions

apply to the instant case, the record reflects

that applicant orally moved for dismissal

of the proceeding on double jeopardy grounds.

However, the record is devoid of a verified

written motion filed before the hearing.

3/ It should be noted, however, that the

transcript, p. 5 reflects the following:

“Hearing held on contempt of court in open

court; commitment order signed and entered

James M. Murphy released on personal recogni-

zance '‘'bond' in open court." All emphasis

is supplied throughout by the writer of this

opinion unless otherwise indicated.

MURPHY 8

See Articles 27.05 and 27.06, V.A.C.C.P. The

question of double jecpardy is not properly

before this cers! Galloway v. State, 420

S.W.2d 721 (Tex.Cr/App. 1967); Nash v. State,

467 S.W.2d 414 (Tex.Cr.App. 1971).

Applicant finally urges that the judgment

of contempt signed by Judge Lindsey is void

because it imposes multiple punishments for

distinct acts of contempt, whereas the original

commitment order provided a single punishment

for such multiple acts. This contention is

without merit. V.A.C.S., Art. 19lla specifi-

cally provides that a judge other than the

offended judge shall hold a hearing to deter-

mine the guilt or innocence of the accused.

The provision has been construed to mean such

judge may also readjudicate punishment ass-

4/ We further note that the applicant should

not be heard to complain of a violation of

his Fifth Amendment rights while simulta-

neously requesting and receiving a second

trial pursuant to Art. 19lla, supra.

MURPHY © 9

essed by the offended judge. Ex parte Howell,

488 S.W.2a 123 (Tex.Cr.App. 1972), appeal

dismissed 414 U.S. 803, 94 S.Ct. 114, pane De

ing denied 414 U.S. 1052, 94 S.Ct. 588, re-

hearing denied 424 U.S. 936, 96 S.Ct. 1151.

The hearing is to be conducted as if a trial

de novo, Avila, supra, and is unencumbered

by any prior -proceedings or holdings. Add-

itionally, punishment may be assessed for

norte than one act of contempt in a single

hearing where the show cause order specifically

alleges each act. Ex parte Genecov, 143 Tex.

476, 186 S.W.2d 225 (Tex.Cr.App. 1945); Ex.

parte McNemee, 605 5.W.24 353 (Tex.Civ.App.

1980), overruled on other grounds.

The judgment is affirmed.

CAMPBELL, Judge

Delivered December 14, 1983

En Banc

Odom, J., not participating

EX PARTE JAMES M. MURPHY HABEAS CORPUS

APPLICATION

NO. 69,205 FROM TARRANT

COUNTY

DISSENTING OPINION

I dissent.

The majority ‘correctly states that Art.

19lla, V.A.C.S., “has been construed to mean

[that the second judge] may also readjudicate

punishment assessed by the offended judge.”

It cites Ex parte Howell, 488 S.W.2d 123

(Tex.Cr.App.1973), as authority. However,

even though the statement is contained in

Ex parte Howell, it is pure dictum because

in Ex parte Howell, supra, the first punish-_

ment that was assessed was not readjudicated

at the second hearing. Thus, the question

whether the second judge might readjudicate

the punishment ‘the first judge had assessed

was not before the Court.

Art, 191la, supra, does not provide,

either expressly or implicitly, for a read-

judication of punishment. However, by the

CENA Be FROME Pp IES ue nf BAI AI A NDS ¥

MURPHY 2

express terms of the statute, the second judge

only readjudicates the “guilt or innocence"

of the officer of the court who was held in

contempt by the first judge.

In this instance, the first judge, after

finding applicant guilty of two separate

contempts, assessed only one punishment,

namely, 72 hours' confinement in the county

jail and a $500 fine. By the first judge's

order, the punishment assessed did not “spe-

cify whether the punishment applied to just

one or both of the contempts. This does not

matter because neither of the contempts has

been held to be void. Cf. Ex parte Werner,

496 S$.W.2a@ 121, 122-123 (Tex.Civ.App.-San

Antoniol973), no writ.

In this instance, the second judge _ read-

judicated the Sindine that applicant was

guilty of both contempts, and then assessed

punishment on one-contempt at a fine of $150

and on the other at one day confinement in

MURPHY 3

the county jail and a $300 fine. This I find

the second judge could not do.

By the provisions of Art. 19lla, supra,

the second judge was restricted to readjudi-

cating applicant's guilt and, if he found

that applicant was guilty of both contempts,

could only assess the same punishment the

first judge had assessed. He was not permitted

to reduce the punishment that the first judge

had assessed, namely, 72 hours’ confinement

in the county jail and a $500 fine. The

second judge's assessment of punishment is

void. The cause should be remanded to the

second judge for him to assess the same pun-_

ishment that the first judge assessed. Be-

cause the majority does not do this, I res-

pectfully dissent.

TEAGUE, Judge

En Banc

Delivered: December 14, 1983

APPENDIX B

"COMMITMENT ORDER"

FINDING PETITIONER GUILTY

DATED AUGUST 26, 1983

EX PARTE ) IN THE DISTRICT

) COURT OF TARRANT

) COUNTY, ‘TEXAS

JAMES M. MURPHY ) 297TH DISTRICT

| ) COURT

COMMITMENT ORDER

CAME ON to be heard, on the 22nd day

of August, 1983, the case of the State of

Texas vs. Alfred Vernell Ray, Cause No. 210-

495D, which was called for trial. The said

Alfred Vernell Ray, whose Attorney of Record

is James M. Murphy, 2405 Cedar Springs, Suite

212, Dallas,- Texas, 75201,° is in custody in

the Tarrant County Jail. His Attorney of

Record, James M. Murphy, was notified to appear

and did not appear. On August 12th, 1983,

at 10:00 a.m., the above styled and numbered

cause was called on the Pre-Trial docket and

the said James M. Murphy did not appear on

that date.

The Court finds that the failure to appear

ain the 297th District Court of Tarrant County,

ab cig 9s 5 Lhe cia A ti

MURPHY 2

Texas by the said James M. Murphy on Angust

12th, 1983 and August 22nd, 1983, is a direct

Contempt of Court, and the Court finds that

James M. Murphy is in Contempt of Court and

that he is sentenced to 72 hours in the Tarrant

County Jail and fined $500.

IT IS THEREFORE THE ORDER, JUDGMENT,

AND DECREE of this Court that the Sheriff

of Tarrant County, Texas place the said James

M. Murphy in the Tarrant County Jail and there

to safely keep him for a period of 72 hours

and until he discharges the $500 fine which

is hereby assessed against the -contemptor.

Signed this 26th day of August, 1983.

(A CERTIFIED COPY) CHARLES DICKENS, Judge

(FILED AUG. 26, 297th District Court

1983 ) Tarrant County, Texas

APPENDIX 5

ry SS SS AT ee AEE EW eS eC A SEE CaP -: RR E tan sR ee At Se nee WARP MRO YES POLE NT TET aaa Sees SON RE 2

APPENDIX C

WARRANT OF ARREST

DATED AUGUST 23, 1983

The State of Texas

In the 297th District Court of Tar-

rant County, Texas July Term 1983

To the Sheriff or any Constable of Tar-

rant, County, Greeting:

WHEREAS, on the 23rd day of August

A.D. 1983 a judgment was tendered by the

of. Tarrant Cou-

297th District Court

nty, Texas, in favor of the State of Tex-

as, against JAMES M. MURPHY for the sum

of $500.00 dollars for fine, and 72 hours

XXXX in 283.2, XXXXXXXXXXXXXXXXXXXXXXXX.

Total fine and cost $500.00.

THESE ARE THEREFORE, TO. COMMAND YOU

}to take the body of him, the said: JAMES

M. MURPHY and deliver him, to the jailor

of the said County, at Fort Worth, unless

he pays the sum above mentioned, together

with all costs incurred in executing this

writ and until said sentence is fully

aseitied:

HEREIN FAIL NOT, .but make due return

of this. writ as the law directs.

Given under my hand afid seal of office

this 23rd day of August A.D. 1983

Offense CONTEMPT _.. _J.W. BOORMAN

oF ae Clerk, The297th

cveees === District Court __

of Tarrant Coun-'

ty, Texas

BILL OF COST

Dol.Cts Dol.Cts

Clerk's Fee 15 00 Fine 500 00

Certified Copy 1 00 Amount Clerk's

Cost Brought Forward

Trial Fee 5 00 District’ mm: ° %

Attorney

Planning Fund 10 00 Sheriff's Fees 10 00

CVCA Fund ; 10 00 Educational Fund 1 00

Clerk's Cost

Carried Forward -0- TOTAL FINE

AND COSTS 500 00

THE STATE OF TEXAS,

County of

AMMAN

Tarrant

I, J.W. BOORMAN, Clerk of the above The

297th District Court in and for said

County and State, hereby certify the above

to be a true and correct account of Fines

and Costs in above entitled and numbered

cause up to this date

WITNESS my hand and seal of said Court

this the 23rd day of August, 1983

J.W. BOORMAN

By Sandra Holloway - Clerk,The 297th

Deputy. District Court _

(A.CERTIFIED COPY) of Tarrant Coun-

ty, -Texas

THE 297th DISTRICT COURT

of Tarrant County, Texas

THE STATE OF TEXAS

vs. § CAPIAS PRO FINUM

JAMES M. MURPHY

Time to Serve -72- ,HOURS

meee GE Fine . 6 3 i le st ee 8 eh BS eee

Amount of Costs ..... i -f-

Tetai .. «. «8 30.00

Credit -0-

issued on the 23rd day

AUGUST A.D. 1983

J.W. BOORMAN

Clerk, The 297th District Court

of Tarrant County, Texas

By Sandra Holloway Deputy.

SHERIFF'S RETURN

Came to hand on the 26th day of August

A.D.1983 at 10:45 o'clock A.M. and ex-

ecuted on the 26th day of August A.D.

1983, by placing in Tarrant County jail

Sheriff of Tarrant

County, Texas

By W.E. Johnston Deputy

APPENDIX D

"NOTICE TO APPEAR. AND SHOW CAUSE"

“eo

EX PARTE: : IN THE DISTRICT

: COURT OF TARRANT

: COUNTY, TEXAS

JAMES M. MURPHY " 297TH JUDICIAL

DISTRIC?

NOTICE TO APPEAR AND SHOW CAUSE

e August 23, 1983, the Honorable CHARLES

DICKENS, Judge of this Court, found the Res-

pondent, Attorney JAMES M. MURPHY, in Cont-

empt .of Court, entered as Order of Commitment ,

and issued a warrant for the arrest of gaia

Respondent MURPHY. Punishment for said ees

tempt was assessed at seventy-two (72) hours

in the Tarrant County ,Jail and a fine of five

hundred dollars ($500.00). A copy of the

Order of Commitment referred to above is us

tached hereto and made a part hereof.

As reason for holding the Respondent

in Contempt, Judgé DICKENS made the following

findings of fact:

om On the 22nd day of August, 1983,

Cause No. 210495D, entitled State

MURPHY 2

of Texas vs. Alfred Vernell Ray, was

pending in this Court, having been duly

set for trial on that date, was called

for trial. Respondent, JAMES M. MURPHY

was the attorney of record for Defendant

RAY and, although having been notified

by the Court to appear for said trial

on August 22, 1983, failed and refused

to appear.

On the 12th day of August, 1983, Cause

No. 210495D, entitled, State of Texas

vs. Alfred Vernell Ray was.__pending in

this Court and having been duly.set for

pretrial hearings, was called by the

Court. Respondent, JAMES M. MURPHY,

‘the attorney of record for said Defendant

~ RAY, although having been duly notified

by the Court to appear for said pretrial

hearing, failed and refused to appear.

On August 26, 1983 the Respondent was

arrestec pursuant to said arrest warrant and

on his. motion, released on his own. personal

MURPHY 3

recognizance. Also, the said Respondent re-

quested that the presiding Judge of the Ad-

ministrative Judicial District appoint a Judge

of anather District Court to make a deter-

mination of Respondent's guilt or innocence.

Pursuant to said request, the Honbdrable

’

CHARLES J. MURRAY, presiding Judge of the

Eighth Administrative Judicial District, @-

pointed -the undersigned District Judge for

the purpose of hearing and determining the

guilt ae of the Respondent herein.

Notice is accordingly given to, JAMES

M. MURPHY, Respondent herein, that you are

hereby einen to be and sneer in the’

aforesaid Court in the 297th District Ceest-

room at the Criminal Courts Building, Fort

Worth, Tarrant County, Texas, on the 26th

day of September, 1983 at 9:00 o'clock a.m.

to then and there show cause if any you have,

why you should not be adjudged guilty as al-

ledged and in and punished for Contempt... of

said Court.

MURPHY 4

It is, therefore ORDERED that the Clerk.

of this Court will issue to you the said

JAMES M. MURPHY at 2405 Cedar Springs, Suite

212, Dallas, Texas 75201, a copy of this Order

requiring you to appear before me in the Court-

room ‘be the 297th Judicial District Court

of Tarrant County, Texas, on the 26th day

of September, 1983 at 9:00 o'clock a.m. then

and there to show cause, if any you have,

why you should not be adjudged guilty as al-

ledged and in Contempt of said Court for

failure to carry out its Orders to appear.

SIGNED this list day of September 1983.

(A CERTIFIED COPY)

(FILED SEP 1,1983) CHARLES W. LINDSEY

Judge Presiding

APPENDIX E

JUDGMENT OF CONTEMPT

N\Y

‘

° —-——-

EX PARTE: IN THE DISTRICT

COURT OF TARRANT

COUNTY, TEXAS

JAMES M. MURPHY 297TH DISTRICT

ee ee eee ee ee eee

COURT

JUDGMENT

WHEREAS, on the 26th day of August,

1983, the Honorable Charles Dickens, Judge

of this Court, found the Respondent, JAMES

M. MURPHY, in contempt for failure to appear

at a pretrial hearing on August 22, 1983,

each in’ Cause No. 210495D, entitled State

of Texas vs. Alfred Vernell Ray, than pending

before this Court; and

WHEREAS, said JAMES Me MURPHY was an

officer of the Court; and

WHEREAS, under the provision of Article

19lla, R.C.S. of Texas the said «Respondent

filed his motion for a determination of his

guilt or innocence by a Judge of a District

Court other than the offended Court; and

WHEREAS, the undersigned District

MURPHY 5

Judge being duly assigned to the 213th Judi-

cial District Court of Texas was appointed

by the Presiding Judge of the Eighth Adminis-

trative Judicial District, the Honorable

Charles J. Murray, for the purpose of hear-

ing and determining the guilt or innocence

of the Respondent herein; and

WHEREAS, on September 26, “1983, came

on to be heard the above entitled and numbered

cause and it appears that Respondent was duly

cited by scire facias to appear here and show

cause why he should now be held in contempt

of this Court and that he did appear and answer

hare din: ie

And the Court having heard all evidence

introduced and abducted by both parties herein

is of the opinion and finds that:

On the 12th day of August, 1983, Cause

No. 210495D, entitled, State of Texas vs...

Alfred Varied Ray was pending in this Court

and having been duly set for pretrial hearings,

was called by the Court and Respondent,

MURPHY | 3

JAMES M. MURPHY, the attorney of record for

said Defendant RAY, although having been duly

notified by the Court to appear for said pre-

trial hearing at 10:00 a.m., August 12, 1983,

failed and refused to appear at that time

or any other time on that date and such failure

to appear was calculated to abstruct and impede

the administration of justice and to inter-

fere with the orderly expeditious conduct

of proceedings before this Court.

IT IS THEREFORE, ORDERED, ADJUDGED and

DECREED that Respondent, JAMES M. MURPHY,

is in contempt of this Court for such failure

and refusal to appear on August 22, 1963,

and it is anteeee that a fine of ONE HUNDRED

FIFTY AND NO/ 100 DOLLARS ($150.00) and for

so doing, this Judgment and Order and shall

be sufficient warrant and authority to said

Sheriff.

And further the Court having heard all

évidence introduced and abducted by both part-

ies herein is of the opinion and finds that on

MURPHY as

the 22nd day of August, 1983, Cause No. 210-

495D, entitled State of Texas vs. Alfred Ver-

nell Ray, was pending in this Court, having

been duly set for trial on that date, was

called to trial. Respondent, JAMES M. MURPHY,

was the attorney of record for Defendant RAY

and, although having been notified by the

Court to appear for said trial at 9:000'-

clock a.m. on August 22, 1983, failed and

refused to appear at that time on any other

time on that date and such failure to appear

was calculated to abstruct and impede the

administration of - justice and to 'interfere

with the orderly expeditious conduct of pro-

ceedings before this Court.

IT IS THEREFORE, ORDERED, ADJUDGED and

DECREED that Respondent, JAMES M. MURPHY,

is in contempt of this Court for such failure

and refusal to appear on August, 22, 1983,

and it is ordered that JAMES M. MURPHY is

hereby punished for such contempt of this

MURPHY 3 5

Court by confinement in the Jail of Tarrant

County, Texas, for a period of one (1) day

and in addition, a fine of THREE HUNDRED AND

NO/100 DOLLARS ($300.00) be assessed against

JAMES M. MURPHY as punishment for such contempt,

and the Clerk of this Court will issue a Writ

commanding the Sheriff of this County to take

the said JAMES M. MURPHY into his custody

and restrain him in his custody until JAMES

M. MURPHY has served the period of confinement

herein imposed and until payment of said fine

of THREE HUNDRED AND NO/100 DOLLARS ($300.00)

and for so doing this Judgment and Order shall

be sufficient warrant. and authority to said

Sheriff.

SIGNED this the 28 day of September,

1983.

JUDGE PRESIDING

APPENDIX F

RECORD EXERPTS

P20 € 8 & Ds 8. @ S&

THE COURT: Are you James M. Murphy?

MR. MURPHY: Yes, Your Honor.

THE COURT: The Court has before

it at this time, Cause No. C-54, entitled

Ex parte: James M. Murphy. I understand

that you have been served with a Show Cause

Order in this matter, is that right?

MR. MURPHY: That's correct, Your

Honor.

THE COURT: Is the State and every-

body ready to proceed?

MR. WORLEY: Yes, Your Honor. We

are ready.

THE COURT: I don't know who starts

first. I guess the State does.

MR. BURNS: By leave of the Court,

if I could, I would like to enter an es

Motion at this time.

THE COURT: All right.

MR. BURNS: To Dismiss the Show

Cause on the basis that the commitment order

is on it's face, void, in tnat it alleges

a direct contempt and the allegations in the

commitment order clearly show that if there

was any contempt at all, that it was cons-

tructive, and further, we would move to dis-

miss on the grounds that pursuant to said

commitment order, Mr. Murphy was placed in

the Tarrant County Jail‘as the Court can see,

in that the warrant was executed and there

is a Sheriff's return which is a violation

of Article %19.11, and that Mr. Murphy has

already been placed in jeopardy pursuant

to the allegations in the commitment. order,

and we would move to dismiss on those grounds.

THE COURT: You may or May not 0obe

correct about whether it was direct or in-

direct, but you saw fit to ask to appeal

the matter for a trial ‘before another Judge,

and that was granted, and a Show Cause Order

has been issued, and you have been given

ample time to prepare to go to trial, and

we are going to have a hearing. This is a

trial De Novo as far as I'm concerned.

De mented

“7

MR. BURNS: I do have another pro-

blem. I have a witness that's coming over

here, and I don't see him here yet.

THE COURT: We'll go ahead and we'll

MR. WORLEY: Your Honor, we would

call

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.