Ex Parte: Albert Acevedo, Jr.

Opinion

NUMBER 13-05-725-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

IN RE: ALBERT ACEVEDO, JR.

On Petition for Writ of Habeas Corpus

DISSENTING MEMORANDUM OPINION ⁽¹⁾

Before Chief Justice Valdez and Justices Rodriguez and Castillo

Dissenting Memorandum Opinion by Justice Castillo

This case involves an application for writ of habeas corpus filed by an attorney held in contempt of court for failing to appear at a noticed setting. The pivotal court date is February 9, 2005. For the reasons explained below, I would deny relief. Thus, I respectfully dissent.

I. BACKGROUND

Relator Albert Acevedo, Jr. testified at the evidentiary hearing convened for purposes of contempt proceedings. Acevedo is an attorney who offices in San Antonio and primarily practices criminal law in multiple jurisdictions with cases in federal and State courts. His custom is to familiarize himself with policies and procedures of the various courts in which he practices. His experience in Victoria County involved representing clients in three or four criminal cases. Because he generally has up to five court settings on any given day, he daily prioritizes multiple settings. His attempt to prioritize a federal case in San Antonio over a misdemeanor case in Victoria County Court at Law No. 2 (the "referring court") resulted in his nonappearance for a pre-set hearing in the latter and, consequently, contempt proceedings. At the evidentiary hearing convened for purposes of contempt proceedings, the evidence unfolded as follows.

A. The Testimony

Acevedo represented V.L.L. in a misdemeanor theft case in Victoria County Court at Law No. 2 and in pending felony cases in San Antonio. V.L.L. resided in San Antonio and appeared at the pertinent court settings in Victoria. According to Acevedo, V.L.L. had been a fugitive and recently released from a substance abuse treatment facility. Acevedo assumed the delay in disposing of V.L.L.'s misdemeanor case, although unintentional, was beneficial to V.L.L. because she could gather money for restitution while the case remained pending. Acevedo believed that restitution to the victim would help plea negotiations and the ultimate disposition of all V.L.L.'s cases.

The referring court's observation of Acevedo's conduct began with his nonappearance at a noticed January 19, 2005 setting. V.L.L. appeared. Acevedo was unable to appear because of a scheduling conflict. Either he or his staff called court staff to report the conflict. The referring court accommodated his schedule and reset the case for February 9, 2005 at 9:00 a.m. Notice was sent to Acevedo on January 24, 2005. Importantly, the February 9 date was specifically suggested by either Acevedo or his staff after the referring court requested a date convenient for him. In either event, the referring court did not unilaterally set the date. More importantly, February 9 was a Wednesday. On Wednesdays, the referring court did not ordinarily set hearings in the afternoon. Acevedo testified he did not know this.

On February 9, 2005, Acevedo did not appear for the 9:00 a.m. setting. His client V.L.L. appeared. Acevedo testified he completed a federal court matter he had that morning and was en route to Victoria by approximately 10:00 a.m. Meanwhile at approximately the same time, the court clerk's office received Acevedo's motion for continuance by fax. The referring court denied the motion because a faxed filing was not a proper filing in the court. The referring court knew V.L.L. appeared. Because the referring court did not want V.L.L. to proceed in a criminal matter without an attorney, she reset V.L.L.'s case to February 23, 2005.

The following day, the referring court began contempt proceedings against Acevedo for his failure to appear at the February 9, 2005 hearing. The referring court considered Acevedo's nonappearance serious because: (1) Acevedo did not appear at a noticed hearing in a criminal case to dispose of the matter and his client did appear after traveling from San Antonio; (2) neither the client nor the referring court could dispose of the case without Acevedo present; (3) the referring court could not "take care of the business of the court;" (4) although Acevedo did appear for an April 1, 2005 setting that disposed of V.L.L.'s case by a guilty plea, the five-month period to dispose of the case exceeded the usual ninety-day interval in such cases; and (5) Acevedo failed to contact the court after his failure to appear at the hearing.

The referring court acknowledged that attorneys who practice criminal law have multiple settings daily. The referring court does grant oral motions for continuance if announced before the date of the hearing. The referring court pointed out that Acevedo was granted a continuance of the original setting by telephone. The referring court further stated:

Q. Okay. And, Judge, do you have a personal rule of thumb as far as the number of times a case will be carried forward or is it just case-by-case?

A. It depends on the reasons for the continuance. I mean, I don't have any hard and fast rules. It just really depends on the situation.

Q. And did the primary issue that you took with Mr. Acevedo was that he didn't file the motions earlier in the form that you felt was acceptable, is that correct?

A. Well, they're not timely, nor were they proper, yes.

. . .

Q. And does that impede you, again, in carrying out justice for the clients and the attorney and for the whole system?

A. Absolutely.

Q. Do you consider that a serious and egregious behavior?

A. I do.

The referring court also addressed Acevedo's attempt to file a motion for continuance by fax on February 9, 2005. The referring court had personally and informally made known to Acevedo in another matter that fax filings were not acceptable without Supreme Court authority to file by fax. ⁽²⁾ The referring court stated it reset the case for the sake of V.L.L. but it did not excuse Acevedo's failure to appear.

Acevedo testified he knew of the February 9, 2005 setting. He admitted he did not appear but stated his absence was not intentional. His intent was not to disregard the setting. Acevedo explained that, on the morning of February 9, 2005, he realized that he would not be able to appear in Victoria because of a pretrial matter in federal court in San Antonio. ⁽³⁾ He decided that, since a trip to Victoria would take most of the day, he could complete the federal matter first and then proceed to Victoria. He intended to appear to dispose of V.L.L.'s case that day, even if he arrived late.

At some point before the noticed hearing, Acevedo contacted V.L.L. and told her to advise the referring court he was in San Antonio handling a federal matter. ⁽⁴⁾ Acevedo filed the motion for continuance out of precaution, he said, but was unsure whether the referring court would grant it. When he completed the federal case, he proceeded to Victoria. His staff advised him that V.L.L.'s case was reset, and he assumed that the motion for continuance was granted. Because the case was reset, Acevedo returned to San Antonio. He believed that the referring court's resetting the matter excused him and for that reason did not communicate with the referring court with respect to his nonappearance.

Acevedo testified he did not believe the matter was a problem until he received a show cause order at his office. He testified he "became aware that the show cause citation had been issued." He further testified that he did not then communicate with the referring court about his nonappearance because he learned about the contempt proceedings. At the evidentiary hearing, he expressed remorse that he did not appear and did not contact the referring court.

B. The Order of Contempt

At the close of evidence, the trial court pronounced its findings as follows: (1) Acevedo had ample notice of the contempt proceeding; (2) he failed to appear in court on February 9, 2005; and (3) Acevedo was in contempt of court for his failure to appear in court. After assessing punishment, the trial court remanded Acevedo to the county sheriff. Acevedo was taken into the sheriff's custody by whom he was being held when the petition for writ of habeas corpus was presented to this Court. We granted Acevedo's motion for release on bond, and he was released on bond pending our decision.

II. HABEAS CORPUS

Broadly defined, contempt of court is disobedience of a court by an action in opposition to its authority. In re Johnson, 996 S.W.2d 430, 433 (Tex. App.-Beaumont 1999, no pet.) (citing Ex parte Chambers, 898 S.W.2d 257, 259 (Tex. 1995)). An original habeas corpus proceeding is a collateral attack on a contempt judgment. Ex parte Rohleder, 424 S.W.2d 891, 892 (Tex. 1967); In re Houston, 92 S.W.3d 870, 875 (Tex. App.-Houston [14th Dist.] 2002, orig. proceeding). A writ of habeas corpus is available in this State to review a contempt order entered by a lower court confining a contemnor. Ex parte Gordon, 584 S.W.2d 686, 687-88 (Tex. 1979). Its purpose is not to determine the ultimate guilt or innocence of the relator, but only to ascertain whether the relator has been unlawfully imprisoned. Id.; Ex parte Haskin, 801 S.W.2d 12, 13 (Tex. App.-Corpus Christi 1990, orig. proceeding). We may order a party released when a judgment or order is void for lack of jurisdiction or because the party was deprived of liberty without due process of law. Haskin, 801 S.W.2d at 13. Where the judgment ordering confinement is "void," the confinement is illegal and the relator is entitled to discharge. Gordon, 584 S.W.2d at 687-88 (citing Ex parte Rhodes, 163 Tex. 31, 34, 352 S.W.2d 249, 250 (1961)). A writ of habeas corpus will issue if the contempt order is void because it deprives the relator of liberty without due process of law, see Ex parte Swate, 922 S.W.2d 122, 124 (Tex. 1996), or because the order of contempt was beyond the power of the court to issue. See Ex parte Barnett, 600 S.W.2d 252, 254 (Tex. 1980); In re Houston, 92 S.W.3d at 875-76. A. Collateral Estoppel

By his first point, Acevedo maintains that the trial court erred in refusing his motion to dismiss based on collateral estoppel and, specifically, double jeopardy. He maintains that he filed a pretrial petition for writ of habeas corpus which the trial court denied. Acevedo asserts that double jeopardy estopped subsequent prosecution of the contempt claim because of the prior finding of contempt on the same grounds. The State responds that neither collateral estoppel nor jeopardy apply because Acevedo's prior appeal successfully voided the prior order of contempt and double jeopardy is thus not implicated.

At the beginning of the contempt hearing, Acevedo's counsel announced ready on the application for writ of habeas corpus. He argued that the purpose of the application was to establish a special plea in bar on the basis of collateral estoppel. ⁽⁵⁾ The trial court denied the application in open court. Acevedo asserts that the trial court also erred by denying him the opportunity to appeal the adverse ruling before the trial court proceeded to hear evidence.

As a prerequisite to presenting a complaint for appellate review, the record must show the complaint was made to the trial court by a timely request, objection, or motion that stated the grounds for the ruling that the complaining party sought from the trial court with sufficient specificity to make the trial court aware of the complaint, unless the specific grounds were apparent from the context. Tex. R. App. P. 33.1(a)(1)(A); Dixon v. State, 928 S.W.2d 564, 564-65 (Tex. Crim. App. 1996). Whether the specific grounds for an objection were apparent from the context of the objection is determined by looking at each situation individually as it arises. Heidelberg v. State, 144 S.W.3d 535, 538 (Tex. Crim. App. 2004). An objection stating one legal basis may not be used to support a different legal theory on appeal. Rezac v. State, 782 S.W.2d 869, 870 (Tex. Crim. App. 1990); Thomas v. State, 723 S.W.2d 696, 700 (Tex. Crim. App. 1986). Even constitutional error may be waived by the failure to specifically object. Broxton v. State, 909 S.W.2d 912, 918 (Tex. Crim. App. 1995).

Acevedo's application to the trial court for writ of habeas corpus relief is in the clerk's record. In his application, he asserted that the prior restraints on his liberty occasioned by the contempt order this Court determined was void barred the contempt proceeding on double jeopardy. The court reporter's record shows that Acevedo did not argue double jeopardy as a basis for his plea in bar, but the trial court stated it had reviewed the file. Because the record demonstrates that Acevedo objected to the contempt proceedings at trial on the theory he raises on appeal, he preserved error. See Tex. R. App. P. 33.1(a)(1)(A); Rezac, 782 S.W.2d at 870.

However, even though Acevedo has raised his jeopardy claim in the context of a criminal contempt proceeding, he has not demonstrated error. Acevedo maintains that the double jeopardy bar applies to successive prosecutions and successive punishments for the same criminal offense if the two offenses are the same offense. The State responds that double jeopardy does not apply because successful appeal of a judgment on any ground other than sufficiency of the evidence poses no bar to further prosecution of the same charge. The State further responds that, because this Court's prior opinion voided the prior order, collateral estoppel does not apply because there is no final judgment.

As embodied in the Fifth Amendment's guaranty against double jeopardy, collateral estoppel means simply that, when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit. Ex parte Robinson, 641 S.W.2d 552, 556 (Tex. Crim. App. 1982) (citing Ashe v. Swenson, 397 U.S. 436, 443(1970)); see Ex

parte Thomas, 953 S.W.2d 286, 289 (Tex. Crim. App. 1997). There must have been

in the first trial a valid and final judgment which determined an issue of ultimate fact. See Robinson, 641 S.W.2d at 556. A judgment is not final until the conviction is affirmed and the mandate of affirmance becomes final. See Jones v. State, 711 S.W.2d 634 (Tex. Crim. App. 1986).

In this case, the issue of ultimate fact is whether Acevedo was in contempt of court. The first contempt proceeding resulted in a final order of contempt. However, this Court decreed the order invalid for lack of personal service and notice of the proceedings. Because this Court previously disposed of Acevedo's claim for reasons unrelated to the merits and did not reach the merits of the contempt action, there was no final disposition of his initial writ application and, thus, the trial court was not barred from addressing the merits of the contempt proceeding. See Thomas, 953 S.W.2d at 289. Thus, Acevedo has not demonstrated a final judgment on the merits of the contempt proceedings against him. Accordingly, I conclude Acevedo has not been put in jeopardy and the trial court properly denied his plea in bar on collateral estoppel grounds. See Robinson, 641 S.W.2d at 556. Thus, I would overrule his first point.

B. Denial of the Right to Appeal

By his second point, Acevedo asserts that the trial court improperly denied him his right to appeal the adverse ruling with respect to his plea in bar. He maintains that, because he announced he was not ready to proceed on the merits of the contempt claim, the trial court should have stayed the evidentiary hearing. The State responds that Acevedo did not request a stay of the proceedings, but the trial court did grant a running objection based on his collateral estoppel claim.

Because Acevedo did not request a stay, abatement, or a continuance of the proceedings, he has forfeited error. See Tex. R. App. P. 33.1(a)(1)(A). All a party has to do to avoid the forfeiture of a complaint on appeal is to let the trial judge know what he wants, why he thinks himself entitled to it, and to do so clearly enough for the judge to understand him at a time when the trial court is in a proper position to do something about it. Keeter v. State, 175 S.W.3d 756, 760 (Tex. Crim. App. 2005) (citing Lankston v. State, 827 S.W.2d 907, 909 (Tex. Crim. App. 1992)). In this case, Acevedo's announcement of not ready does not equate to an affirmative request for a ruling from the trial court with respect to a stay or a continuance.

Even assuming he preserved error, Acevedo has not shown harm resulted from the absence of an interlocutory appeal, see Tex. R. App. P. 44.2. The trial court granted Acevedo a running objection with respect to his collateral estoppel and double jeopardy claims and thus his complaint was preserved for appellate review on those grounds. Acevedo presented his complaint in this original proceeding. I, however, would rule adversely to his collateral estoppel and double jeopardy claims. Because Acevedo sought and secured appellate review of the matters he ostensibly would have earlier pursued on interlocutory appeal, I cannot conclude he has demonstrated harm. See Tex. R. App. P. 44.2. Accordingly, I would overrule his second point.

C. Lack of Personal Service

By his third point, Acevedo asserts he was denied due process because he was not personally served with the show cause citation. The State responds that Acevedo has not preserved error because he failed to timely raise his complaint.

We are empowered to order a party released when an order is void because the party was deprived of liberty without due process of law. See Haskin, 801 S.W.2d at 13. In a case involving conduct outside the presence of the court, due process requires that the alleged contemnor receive full and unambiguous notification of the accusation of any contempt. Ex parte Vetterick, 744 S.W.2d 598, 599 (Tex. 1988). This notice should be by show cause order or equivalent legal process served on the alleged contemnor, and it should state when, how, and by what means the defendant has been in contempt. See Houston, 92 S.W.3d at 877 (citing Ex parte Edgerly, 441 S.W.2d 514, 516 (Tex. 1969)); Gordon, 584 S.W.2d at 688. The show cause notice must advise the alleged contemnor of the specific acts of contempt and provide notice that criminal confinement and a criminal penalty will be sought as punishment. See Houston, 92 S.W.3d at 877. Due process requires that the alleged contemnor be personally served with a show cause order or that it be established that he had knowledge of the content of such order. Ex parte Herring, 438 S.W.2d 801, 803 (Tex. 1969).

I am mindful that notice of the alleged contemptuous acts is required. See Houston, 92 S.W.3d at 877. However, Acevedo does not state he lacked notice of the alleged contemptuous acts. Acevedo also does not deny constructive notice of the alleged contemptuous acts. Rather, he maintains that lack of substantive notice from the inception of contempt proceedings bars subsequent corrective actions that attempt to remedy due process violations. Acevedo further asserts that a correction of the allegations of contemptuous conduct, once erroneous, cannot cure the due process violation. I turn to the record.

Before hearing evidence, the trial court pronounced in part "there has been a show cause served on Mr. Acevedo regarding an alleged failure to appear as defense counsel in this case on February 9, 2005." Acevedo's counsel urged a motion to quash service which the trial court denied in open court. ⁽⁶⁾ The following colloquy between the trial court and Acevedo ensued:

The Court: Let me put a couple of things on the record before we begin with the testimony. And, you counsel just made an announcement, Mr. Acevedo, but are you Albert Acevedo, Jr.?

Mr. Acevedo: I am, Your Honor.

The Court: And you understand there is a proceeding that has been brought asking that you be held in contempt of court? Do you understand that?

Mr. Acevedo: Yes, Your Honor.

During the evidentiary hearing, Acevedo admitted he received a show cause order at his office and "became aware" that the show cause citation had been issued. When questioned by the trial court in the colloquy above, Acevedo acknowledged he knew of the contempt proceeding. Before entering the contempt order, the trial court found that Acevedo "has had ample notice of this contempt proceeding."

To demonstrate lack of personal service, Acevedo relies on the testimony of the deputy who delivered the show cause citation to his office. The deputy testified that he did not personally serve the show cause citation on Acevedo but left the document with Acevedo's staff, consistent with a practice in place at Acevedo's request. The deputy testified he regularly left citations on bond forfeitures requesting personal service on Acevedo with his staff. Acevedo testified he was the surety on V.L.L.'s bond.

I observe that in the prior proceeding before this Court, Acevedo raised a challenge to the lack of personal service of the show cause citation and the lack of notice of the conduct in question. In the prior proceeding, this Court included the complained-of language in the opinion issued. ⁽⁷⁾ Finding the contempt order void, this Court held that the officer's return did not indicate that Acevedo was personally served with the original show cause citation and the show cause notice did not specify, as it must, the contemptuous acts. Acevedo relied on the opinion to support his plea in bar urged in the matter before us. Prior to hearing evidence in this case, the trial court reviewed the file and considered the procedural history before it determined that "there has been a show cause served on Mr. Acevedo." ⁽⁸⁾

The show cause citation is before us. I assume without deciding that Acevedo's motion to quash the citation raised the matters urged before us and thus he preserved error. See Tex. R. App. P. 33.1(a)(2)(A). Due process requires that the alleged contemnor have actual or constructive knowledge of the content of the show cause order. See Herring, 438 S.W.2d at 803; Houston, 92 S.W.3d at 877. Even assuming that Acevedo did not receive personal service of citation, the record demonstrates he had constructive notice of the alleged contemptuous acts. See Herring, 438 S.W.2d at 803; Houston, 92 S.W.3d at 877. Acevedo admitted he received a show cause order at his office, he "became aware" that the show cause citation had been issued, and he did not communicate with the referring court about his nonappearance because he learned about the contempt proceedings.

I conclude that the trial court's finding that Acevedo had ample notice is supported by the record before it. I further conclude that Acevedo had constructive notice of the show cause complaint underlying the contempt proceeding. See Herring, 438 S.W.2d at 803; Houston, 92 S.W.3d at 877. Acevedo has provided no authority to support his argument that a corrected show cause citation specifying the contemptuous conduct cannot cure a proven due process violation. Accordingly, Acevedo received the process that was due in this case. See Herring, 438 S.W.2d at 803; Houston, 92 S.W.3d at 877. Thus, I would overrule his third point.

III. CONCLUSION

Having considered and overruled Acevedo's three points, I would deny his application for writ of habeas corpus.

ERRLINDA CASTILLO

Justice

Do not publish.

Tex. R. App. P. 47.2(b).

Dissenting Memorandum Opinion delivered and filed

this 9th day of November, 2006.

1. See Tex. R. App. P. 47.1, 47.4; see also this Court's opinions in the related cases, Acevedo v. State, No. 13-05-222-CR, 2005 Tex. App. LEXIS 3668 (Tex. App.-Corpus Christi May 12, 2005, no pet.) (memorandum opinion per curiam) and In re Acevedo, No. 13-05-335-CR, 2005 Tex. App. LEXIS 5754 (Tex. App.-Corpus Christi, July 22, 2005) (original proceeding).

2. The referring court explained that the county clerk had not submitted a plan to the Supreme Court with respect to fax filings, and so, fax filings were not authorized.

3. Acevedo testified travel time between San Antonio and Victoria was over two hours.

4. Acevedo denied his custom was to request clients to explain his nonappearance. He testified that he preferred not to file continuance motions but, rather, handle set cases.

5. The document is an application for writ of habeas corpus to the trial court. In it, Acevedo asserts his special plea that the trial court's jurisdiction expired on grounds of double jeopardy and want of personal service of citation.

6. Acevedo's counsel apprised the trial court that Acevedo's motion to quash service was included in the application for writ of habeas corpus. In the pleading, Acevedo asserted that "he has not as of this date been personally served with citation or notice."

7. This Court's opinion reflects that on February 10, the trial court issued a "show cause citation" addressed to Acevedo which stated:

You are hereby commanded to appear before the honorable County Court at Law No. 2 of Victoria County, Texas at the Courthouse of said County in Victoria, Victoria County, Texas on the 23rd day of February, 2005 at 9:00 o'clock a.m. to answer to the demand made by [the county court judge]. Nature of the above mentioned demand is substantially to have a hearing to show cause why you should not be held in contempt of court.

In re Acevedo, 2005 Tex. App. LEXIS 5754, at *1-2.

8. In this case, the show cause citation issued on July 27, 2005 and directed to Acevedo states:

YOU ARE HEREBY COMMANDED to personally appear in County Court at Law No. 2, before [the county court judge] on September 1, 2005 at 9:00 o'clock a.m. in the County Court at Law No. 1 courtroom [address] to show cause why he should not be held in contempt for failing to appear as defense counsel for [V.L.L.] on February 5, 2005 at nine o'clock a.m. in County Court at Law No. 1, Victoria County, [judge presiding].

[The county court judge] will consider criminal confinement and/or a fine as penalties if the Respondent is found in contempt.

CONTEMPT OF COURT IS PUNISHABLE BY A MAXIMUM PENALTY OF A FINE OF UP TO $500.00 AND A SENTENCE OF CONFINEMENT UP TO 180 DAYS IN JAIL OR BOTH.

(Emphasis original).