Ex Parte Arnold

503 S.W.2d 529, 1974 Tex. Crim. App. LEXIS 1528

• Court: Court of Criminal Appeals of Texas
• Decided: January 9, 1974
• Docket: 47227, 47228
• Status: Published

Opinions

OPINION

ROBERTS, Judge.

Relators seek relief from a judgment in Criminal District Court No. 5 of Dallas County, holding them in contempt of court and assessing their punishment at six months’ confinement in the county jail.

On April 6, 1972, relators, accompanied by a third individual whose name was not revealed but who was referred to as “John Doe,” attempted to take pictures of Officer Robert Harden, an undercover agent for the Texas Department of Public Safety. Officer Harden, on the date of the occurrence of the act for which relators were held in contempt, had been testifying as the State’s chief witness in a trial being conducted in Criminal District Court No. 5. The events constituting the alleged contemptuous conduct occurred as Officers Harden, Floyd and Maxwell were returning to the courtroom following the noon recess. As the three officers stepped from the elevator into the hall outside the courtroom, the unnamed man, “John Doe,” pointed to Officer Harden and said, “That’s the man.” At this point, relator Stein, known also as Stoney Burns, began taking pictures of Officer Harden. When requested not to take pictures, he persisted. As Officer Harden attempted to put his arm in front of his face, Arnold and “John Doe” allegedly grabbed Officer Harden’s arms and held them to his side so that Stein could continue to take photographs. The court was immediately informed of the events which had taken place and Arnold, who was seen standing outside the courtroom, was brought before Judge Ed Gossett and, without a hearing being conducted, was held in contempt. Arnold’s motion for new trial was granted and both Arnold and Stein were ordered to appear before the court and show cause as to why they should not be held in contempt. Following this hearing, both relators were found to be in contempt of court.

In one ground, it is charged that the evidence is insufficient to support the findings of the court. First, however, some background on this infrequently discussed topic is necessary.

I.

Contempt Proceedings in Texas

“In this state, we have no statute defining contempts of court, and we are relegated to the doctrine of contempts at common law.” Ex Parte Green, 46 Tex.Cr.R. 576, 81 S.W. 723 (1904). Also, this State has traditionally recognized that there are two classes of contempt.

A.

Direct Contempt

This is generally defined as “[con-tempts in the presence of the court (that is, in facie curiae).” Ex Parte Lake, 37 Tex.Cr.R. 656, 40 S.W. 727 (1897). The distinction between this type of contempt and constructive contempt was well stated by the Supreme Court of Texas in Ex Parte Ratliff, 117 Tex. 325, 3 S.W.2d 406 (1928):

“In the one [direct contempt] the court sees and knows of all the acts which constitute the contempt, and needs no testimony to establish their existence as facts, while in the other [constructive contempt], testimony must be heard to inform the court, and, this being so, due process of law demands that this testimony should be heard publicly, in open court, and by both sides to the controversy, after due notice to the accused of what is alleged against him, in order that he may have an opportunity to meet and explain it.” ¹

Apparently, the farthest that this Court has, to date, carried the concept of direct contempt occurred in the case of Ex Parte Aldridge, 169 Tex.Cr.R. 395, 334 S.W.2d 161 (1959). There, the relator was found to be in direct contempt of the court where he circulated a publication ² in the immediate presence -of prospective jurors who were waiting outside the courtroom in the corridors of the courthouse. This Court held that “the presence of the court” extended to and included the prospective jurors and the place assigned to them to wait. The Court found that the contemnor clearly interfered with the due administration of justice there, since a dismissal of the jurors and a postponement of the trial resulted.

Applying the above rules of law to the present fact situation, we conclude that the petitioners could not be found to be in direct contempt.³ Both sides agree that the incident did not occur in the courtroom. And even using the rationale advanced in Aldridge v. State, supra, the record does not reflect that justice was interfered with in this cause. The State argues that the undercover agent’s “demeanor” as a witness was affected by this incident. The record reflects that this agent stated at the hearing on the contempt charges:

“I was thinking that they would publish my picture in the paper. I was thinking of the danger to my life, the security of my job, how it would affect my job in this area especially, and possible all over the State of Texas, and that was about it.” ⁴

This same witness testified that his forearms were held for “just a couple of seconds” while his picture was taken. This Court is unwilling to take this testimony and conclude that the entire administration of justice in this trial was disturbed by the incident. There was absolutely no evidence presented that the accused on trial in the courtroom (Boykin) was in any way prejudiced or harmed by the incident, nor can we see how the State’s case was compromised. The agent whose picture was taken testified that he certainly did not withhold any information from the Boykin trial as a result of this incident.

Apparently, the most offensive part of the incident to the agent was the picture-taking itself, and not the “physical restraint” imposed on him during the episode.⁵

The Propriety of the Picture-Taking

The State condemns this picture-taking because of the danger it would pose to the undercover agent if the photographs were published. As Agent Harden stated, “I figured that they were taking the pictures in order to publish them for the dope dealers to see in the area.” Thus, the unveiling of this agent’s secret identity seems to play a most important role in sending the petitioners to jail for six months.

It occurs to this Court that the agent should not be able to complain of this when he lifted that veil himself the minute he walked into the courtroom and took the stand as a witness in a public trial. Certainly, any citizen would have had the right to sit in that courtroom and witness the proceedings in the Boykin cause, as well . as observing the witnesses who testified.⁶ '

The record reflects that the same reasoning we now advance was stated by the trial judge himself at one point. One of the defense counsel inquired of Agent Harden:

“Q Have you been assured by this Court that you may expect the protection of the Court, of the confidentiality and confidential nature of your work, of the secretness of your work ?

“A THE COURT: Counsel, this Court couldn’t give him any such assurances if he wanted to.”

[Emphasis added]

As for the taking of the pictures, the court stated at one point, “It’s a general rule of this Court and everybody understands it. The bailiffs are instructed that no pictures are to be made in this Court.” That did not occur in this case.

We have no doubt that any person on the streets outside the courtroom, whether he were a member of the press or not, could have legally walked up to this agent, or any other person and taken his picture.⁷ Certainly, there can be no reasonable expectation of privacy when a person places himself in a public place.⁸

B.

Constructive Contempt

Is it possible to uphold the trial court on this basis? We refer the reader to the case of Ex Parte Lake, supra. This 1897 case has never been overruled and it spates '•

“To be guilty of a constructive contempt, there must have existed at the time some order or some writ which he [the accused] violated.”

The State infers that the “order” that was violated in this case was the rule of evidence. The Vernon’s Ann.Code of Criminal Procedure, in Article 36.03, states:

“At the request of either party, the witnesses on both sides may be sworn and placed in the custody of an officer and removed out of the courtroom to some place where they cannot hear the testimony as delivered by any other witness in the cause. This is termed placing witnesses under rule.”

We fail to perceive how this rule was violated by the alleged contemptuous activity.

In this cause, there was no order of the court which the contemnors violated.⁹ Therefore, the court had no power to summarily punish for contempt which allegedly occurred not in the presence of the court. Ex Parte Hardin, 161 Tex. 567, 344 S.W. 2d 152 (1961). Unfortunately, this is exactly what happened initially in this case. When the court was informed as to what had happened in the hallway outside the courtroom, relator Arnold was immediately held in contempt, without notice or an opportunity to be heard. At this first proceeding, Arnold was given a punishment of three days in jail or a fine of $100.00. However, after requesting and receiving a trial on the contempt charge, both relators received the maximum punishment available; i.e., six months in jail and a fine of $500.00.

II.

Freedom of the Press Issue

Petitioners allege that their First Amendment rights were violated by the court’s action. This Court has spoken on the issue of the rights of reporters versus the necessity for maintaining an orderly judicial process, and we refer the reader to the case of Ex Parte Davis, 171 Tex.Cr.R. 629, 353 S.W.2d 29 (1962). There, we stated that we “do not deny the trial court the right to punish for contempt a reporter for conduct in the presence of the court which interferes with orderly proceedings in the administration of justice.” [Emphasis added]

In the Davis case, this Court held unconstitutional an order purporting to bar one reporter from entering an area of the courtroom inside the rail while continuing to allow other individuals similarly situated to come within this area.

This Court has always recognized the right to a free press, a valuable right of the people and one to be protected and maintained. Ex Parte Aldridge, supra. This same Aldridge case discussed the test generally applied in cases involving questions of First Amendment rights. The “clear and present danger” test states that freedom of the press shall not be impaired through the exercise by state courts of contempt proceedings unless there is a clear and present danger that the utterances in question present a serious and imminent threat to the due administration of justice. The “utterances” in question in this present case were the public revelation of the agent’s identity. However, as stated before, we must conclude that when the agent took the stand in a courtroom open to the public, he waived any question as to his identity as an agent.

Further, there can be no constructive contempts of court with reference to publications reflecting on the court or the judge thereof unless the publication is not only of a defamatory character, but is also untrue, and relates to some particular case then pending, and is calculated to embarrass the court in the trial or disposition thereof. Ex Parte Green, supra. No part of such a test has been met in the case now before this Court. As to other publications not relating to a pending case, no matter how defamatory the language used may be with reference to the court or the judge thereof, this will not constitute a contempt, because it cannot be regarded as calculated to interfere with the administration of justice. Ex Parte Green, supra.

III.

Conclusion

The relators, in violation of no court order, took pictures of a narcotics agent. The agent testified he was held up by the forearms “for a couple of seconds” while this happened. Another agent at the scene corroborated this, though other persons there in the hallway did not. The State introduced an “underground” newspaper, in which these photographs appeared. The copies of those pictures are before this Court; they are of poor quality, but they reflect a smiling, unrestrained agent Harden. It is apparent that if the agent had wished to pursue this restraint matter, he had an adequate remedy in a civil action for assault, or by a criminal assault complaint.

We are certainly aware of the necessity for a judge of a court to preserve order and decorum, demand respect and enforce its mandates and decrees.

“There can be no doubt that the judge has the right to punish for contempt, and yet this right is not given for the private advantage of the judge but to preserve that respect in regard to which the court cannot be deprived and maintain its usefulness. . . . extreme caution is required that the judge in redressing a public wrong does not also find revenge for his private grievances.” Ex Parte Davis, supra.

The power to punish for contempt should only be exercised with caution. Wilson v. Johnston, 404 S.W.2d 870 (C.C.A. Amarillo, 1966) no writ history; also, contempt is not to be presumed, but on the contrary is presumed not to exist. Ex Parte Elmore, 161 Tex. 585, 342 S.W.2d 558 (1961).

The burden of proof in a contempt proceeding is “beyond a reasonable doubt.” Ex Parte Cragg, 133 Tex.Cr.R. 118, 109 S.W.2d 479 (1937). We are of the opinion that the evidence in this present case wholly fails to meet the measure of the law. The evidence is not sufficient to show contempt on the part of the relators in this present case, and the trial judge abused his discretion in so holding. That judge uniquely held the relators to be in contempt, both directly and constructively. The record substantiates neither.

The writs are granted and the charges against the relators are ordered dismissed.

1 . It should be pointed out that the judge in the present case held the petitioners “guilty of loth constructive and actual contempt.” [Emphasis added]

2 . The publication related to the trial judge’s alleged bias in the case.

3 .The State, in its brief, recognizes that after the court had Arnold brought into the courtroom, it summarily found him guilty of contempt. According to the State, the judge later granted a motion for new trial because he realized “that this was not a direct contempt.” [Emphasis added]

4 . This line of questioning was pursued by the prosecutor only after the trial judge himself prompted, “Counsel, you might ask the witness why he didn’t want his picture taken.”

5 . During the contempt hearing, defense counsel inquired whether he was there “to defend physical restraint or taking of pictures?” To this inquiry, the State responded, “Tour Honor, at this time the State would ask that the Court not try to justify his rulings to these clowns [referring to the two defense counsel]. This is a proceeding.”

6 . Certainly, we recognize that unusual situations may develop where a judge is forced to limit the number of spectators or reporters, perhaps for reasons of security in the courtroom or lack of space.

7 . A supplemental transcript filed with this Court contains excerpts from the Boykin trial. When the court was informed of what had occurred in the hallway, it stated, “Go bring him in here and we will get their cameras.”

8 . We refer the reader to the case of Buchanan v. State, 471 S.W.2d 401 (Tex.Cr.App.1971). Judge Douglas wrote the opinion and declared that a person inside a restroom stall that had no doors could not reasonably expect privacy. This Court stated that where “the design is such that there is no right to expect privacy there can be no invasion of privacy.”

9 . Of course, where there is a violation of an injunctive order, contempt of court arises and the court’s power to punish is inherent. General Southwestern Corporation v. State, 333 S.W.2d 164 (C.C.A.Houston, 1960) writ ref., n. r. e.