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Ex parte Reposa

Court of Criminal Appeals of Texas

November 15, 2017




          Alcala, J., filed a dissenting opinion in which Richardson and Newell, JJ., joined.

         Adam Reposa, applicant, is a licensed Texas attorney who has been confined in jail for over a month for contempt of court after he spoke disrespectfully to a county court judge and behaved inappropriately during a misdemeanor trial. In his current pleadings before this Court, applicant contends that the judgment of contempt is a nullity or must be reversed for two independent and alternative reasons. He contends that the judge who originally held him in contempt erred by failing to adhere to statutory and constitutional requirements pertinent to direct contempt. Alternatively, he argues that the judge conducting the contempt trial erred by denying him his right to a jury trial to which he was entitled because his six month day-for-day jail sentence is the equivalent of a one-year jail sentence that would ordinarily be served through two days of credit for every one day served in jail. In conjunction with this pleading, applicant renews his request that this Court order his release on bond pending an ultimate decision on the merits of this original habeas application. Today, this Court denies applicant's motion for leave to file his application and his request for bond. I respectfully disagree with this Court's resolution of this case for two reasons. First, as I said in my earlier dissenting opinion several weeks ago with respect to applicant's confinement under this contempt order, he is entitled to bond pending the resolution of his challenges. Applicant is not a flight risk given that he is an officer of the court and has continually appeared in multiple courts in an effort to seek relief from this contempt order, he is not a risk to the safety of the judges or community, and his continued confinement for the next five months will render moot his legal challenges that likely will not be resolved within that period of time. I, therefore, would immediately grant his request for personal bond pending the outcome of this original writ proceeding. Second, unlike this Court's decision that denies applicant leave to file, I would instead order applicant to file a supplemental brief within the next ten days explaining the details of litigation pending in other courts related to this contempt proceeding and addressing whether he has any other adequate remedy at law. Assuming that applicant would be able to demonstrate a lack of any other adequate remedy at law, I would file and set his case to consider his claims on their merits. I, therefore, respectfully dissent from this Court's decision denying the motion for leave to file an application for an original writ of habeas corpus and denying applicant's request for bond.

         I. Background

         Although the events at issue in this case have transpired over the course of less than a year, the procedural history is somewhat lengthy. My review of the procedural history includes the events leading up to and during the contempt of court hearing, applicant's arrest and efforts to obtain bond from multiple trial-level courts, his first request for relief in this Court, his actions in a Williamson County court, and his instant litigation filed in this Court.[1]

         A. Events Leading Up to and During the Contempt of Court Hearing

         On March 27, 2017, applicant was acting as defense counsel in a trial occurring in the courtroom of Judge Nancy Hohengarten of Travis County Court at Law No. 5. According to that court, applicant behaved disrespectfully towards the court in five instances during jury selection. Those alleged instances were: (1) applicant refused to come to the bench after being summoned by the court; (2) applicant continued to question the venire panel when the court was attempting to have a bench conference outside the hearing of the venire; (3) applicant continued to question a venire person after the court instructed the juror not to answer the question; (4) applicant stated within the hearing of the venire panel, "I want to show the people how hard it is to get a fair trial in this court and that's what I'm doing"; and (5) applicant spoke in a tone and tenor that was disrespectful when addressing the court. Based on this misconduct by applicant, Judge Hohengarten declared a mistrial, and she indicated that she was preparing to have applicant held in contempt of court. She stated that she would be "getting [applicant] the motion for contempt and [she would] be letting the presiding judge know so that . . . a judge can be appointed to hear the contempt." She then stated, "I'm not taking you into custody. I'm just notifying you that I am going to have that drafted and delivered, Okay?"

         Judge Hohengarten later issued a written order finding applicant "in direct criminal contempt of court for behavior and statements made in open court in the presence of a jury panel and the parties[.]" The order indicated that applicant had committed the five acts set forth above in contempt of court. Judge Hohengarten requested that another judge be appointed to hear the contempt matter.[2]

         On April 4, Judge Paul Davis, sitting by assignment in Travis County, presided over applicant's contempt proceeding, and this summer, he had preliminary settings at which applicant failed to appear. According to the State, twice in June applicant failed to appear for a hearing on the contempt cause, and Judge Davis eventually issued a capias for applicant's arrest. Around this same time, applicant filed an application for a writ of habeas corpus in Williamson County challenging the issuance of the capias because a sentence was never imposed directly by Judge Hohengarten. At some point, Judge Davis ordered a competency hearing and recalled the capias, but according to the State, applicant continued to fail to appear in court as required.

         On September 11, with applicant present in court, Judge Davis heard evidence on the contempt complaint. Nine days later, Judge Davis found applicant guilty as to all five instances of contempt that had been described by Judge Hohengarten, and he sentenced applicant to six months' confinement to be served day-for-day as to each instance of contempt, with the sentences to run concurrently. Judge Davis made the following findings in support of the judgment:

1. Applicant's behavior reflected an "overall strategy to attempt to have members of the jury disrespect the law, the trial judge, the facts of the case and engage in jury nullification."
2.Applicant has previously been held in contempt of court in 2008, at which time applicant was sentenced to 90 days of confinement. See Ex parte Reposa, No. AP-75, 695, 2009 WL 3478455 (Tex. Crim. App. Oct. 28. 2009). Applicant's "contumacious conduct continues to this day."
3.Prior to the instant contempt proceeding, applicant posted two videos online, one on July 11 and one on August 9, which were disrespectful to the trial judge and the prosecutors.[3]
4. Applicant had made other statements "to and about the prosecutors, " including statements that were "harassing, intimidating, disrespectful, gross, and hostile." Applicant had "recently prepared and circulated demeaning and disrespectful drawings superimposed over pictures of the Court, Judge Hohengarten and one of the prosecutors, ostensibly for an advertisement for a (non-law related) business owned by [applicant]."
5. The evidence reflected applicant's efforts "to intentionally obstruct the trial proceedings on March 27, 2017, to intentionally obstruct and demean this Court during the pendency of this proceeding, to attempt to intimidate and harass the prosecutors in this case, and to demean the judge of the Court in which [applicant] was appearing on March 27, 2017[.]" The evidence further reflected "a definite pattern of conduct by [applicant] that is totally improper and incompatible with [applicant's] obligations as an attorney in our legal system." "When a lawyer disagrees with a judge's ruling, the proper course of action is to request a hearing outside the presence of the jury, make a complete record of the error to preserve it for appellate review, and then take the matter to the appellate court. It is improper to attempt to show the judge's error to the jury or jury panel, in an effort to convince the jury of the unfairness of the court."
6. Applicant's tactics had the effect of "bringing the legal system into disrepute."

         On applicant's motion, the contempt court stayed execution of the sentence until it could consider applicant's bond request, but the court subsequently denied his request and ordered him to commence serving his sentence.

         Applicant, through counsel, filed a "Motion for Rehearing of Application for Writ of Habeas Corpus" and a "Second Amended Application for Writ of Habeas Corpus" in Travis County Court at Law, No. 5. The motion was heard by Judge Sid L. Harle, sitting for Judge Hohengarten by designation. Applicant was absent from the hearing but represented by counsel. Judge Harle denied applicant's motions and an oral motion to grant him bond or, alternatively, to reform the sentence.

         B. Applicant's Arrest and Efforts to Obtain a Bond Through Trial-Level Courts

         On October 6, applicant was arrested in Williamson County for the contempt judgment, and he was transferred to Travis County, where he began serving his contempt sentence. In the few days before and after his arrest, applicant sought a bond from ...

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