Ex Parte Rose

704 S.W.2d 751, 1984 Tex. Crim. App. LEXIS 657

• Court: Court of Criminal Appeals of Texas
• Decided: May 16, 1984
• Docket: 69265
• Status: Published

Opinions

OPINION

ONION, Presiding Judge.

This is an original application for writ of habeas corpus filed in this court in which the applicant, an attorney and an officer of the court, seeks relief from a judgment of the Criminal District Court No. 2 of Dallas County holding him in contempt of court.¹

Applicant alleges he is illegally confined and restrained of his liberty by an order of contempt entered on January 30, 1984, in Cause No. F83-A0472MI by the Honorable Don Metcalfe, judge of the aforesaid district court, and assessed a fine of $500.00. Applicant contends the said contempt order is improper and void.

It appears that applicant was representing the defendant in said Cause No. F83-A0472MI who was charged with rape, and that applicant was held in contempt for asking the prosecutrix on cross-examination “in substance if she had been raped before.” Prior to the said interrogation, the court had entered an order for the applicant to comply with V.T.C.A., Penal Code, § 22.065.

The respondent judge has been asked to respond and he has. The record is now before this court.

On January 23, 1984, prior to the voir dire examination of the jury panel, the record reflects the court called the applicant’s attention to § 22.065 of the Penal code and stated:

“... This is an indictment charging the Defendant with the felony offense of rape and under that particular section of the Penal Code as it is now numbered. I want to caution you, Mr. Rose, that you give strict compliance to that and that no questions are to be asked of the victim, alleged victim, and no evidence is to be offered in any way, going into prior sexual activity of the victim under that statute. First, advise the Court to retire the jury and outside the presence of the jury in a closed hearing, make it known to the Court your desires regarding going into such matters.”

The prosecutor then informed the court a motion in limine along the same lines was being typed and asked it be granted. The court stated it would be granted.

The prosecutrix testified, as reflected by a stipulation by the parties for this record, that on February 27, 1982, she lived alone in a Dallas apartment; that after arriving home from work, she watched television, and then went to bed. About midnight she answered a knock at the door and found the defendant there. He asked for Barbara, her foster sister, who had formerly lived there. Since it was cold she asked him in, while she got Barbara’s address and telephone number. They began to talk about Barbara and she smelled liquor on the defendant’s breath. He asked if she had any “pot” and she answered “No,” but said she would smoke a “joint.” The defendant went to his car and returned. They then chatted and smoked a “joint.” The prosecutrix observed he was “very drunk and high,” and the defendant didn’t want to “get back on the street in that condition.” The prosecutrix finally agreed to drive him to a motel.

When she went to the bathroom, the defendant grabbed her from behind. He took her to the bedroom/living room and told her to commit oral sodomy on him. She felt a thin flat object in his pocket which could have been a knife. He told her he would cut her if she didn’t do what he wanted. He forced her to commit oral sodomy on him and then he had sexual intercourse with her. After this he left. She drove to a hospital and called the police.

The transcription of the court reporter’s notes reflects the following on the cross-examination of the prosecutrix:

“By Mr. Rose:

“Q You say you bought a gun after this?

“A Yes, sir.

“Q And you got a peep-hole installed?

“A Yes.

“Q I take it nothing like that ever happened to you before?

“MR. PHILLIPS (Prosecutor): Object strenuously to that .... ”

“THE COURT: I sustain the objection. Ladies and gentlemen, would you go back in the jury room, please. (Whereupon, the jury was retired and the following proceedings were had outside the presence and hearing of the jury.)

“THE COURT: Mr. Rose, before this trial started I went over the Penal Code with you. I pointed out what it says about the prior sexual conduct of a victim of a rape case. And I told you at that point in time that you could not inquire into that without going into chambers and having a sealed, closed meeting that was under our law, closed to the public. Before I say anything more, have you got any good reason to explain to me why you would ask this witness if she had, in essence, ever been raped before?

“MR. ROSE: Judge, I understand that to be her promiscuity as related to promiscuity and the prosecutor brought up the fact about the gun, he brought up the fact about the peephole—

“THE COURT: No, your question to her, has anything like this ever happened to her before.

“MR. ROSE: I was not talking about promiscuity—

“THE COURT: You are talking about if she’s ever been raped before, right?

“MR. ROSE: I am asking her, yes, sir.

“THE COURT: All right.

“MR. ROSE: Has nothing to do with sexual conduct regarding promiscuity or sexual conduct—

“THE COURT: That, Mr. Rose, may be decided by somebody else but you are in contempt of Court and your punishment is fixed at a five hundred dollar fine: I will hold this in abeyance pending the end of the trial. At the end of the trial I will enter an order, give you your rights and have you certified to the Presiding Judge and let you have your personal bond. We are going to take a ten minute recess and if this happens again during the course of this trial, after all the admonishments I have given you, I will deal with it again. Do you understand what I’m saying?

“MR. ROSE: Yes, sir. Judge—

“THE COURT: You take the next ten minutes to go read the Code of Criminal Procedure and the Penal Code and specifically the article in the Penal Code dealing with this evidence, because as far as I’m concerned, you are in direct violation, not only in this statute but by my order in this whole matter....”

Thereafter on January 30, 1984, after a hung jury and a mistrial, the court entered a written order of contempt for intentionally asking the question “I take it nothing like that ever happened to you before?” as the question was a direct inquiry as to whether the witness had been raped previously, and was in violation of V.T.C.A., Penal Code, § 22.065, and the previous order of the court. The fine assessed was $500.00. On the same date the respondent judge entered another order suspending the order of contempt and releasing applicant on his personal recognizance, and forwarding the matter to the Honorable John Ovard, Presiding Judge of the First Administrative District, for further proceedings in accordance with Article 1911a, V.A.C.S.² On February 6, 1984, the said Presiding Judge assigned the Honorable David Moore, a retired district judge, to the said Criminal District Court No. 2 to hear the contempt matter. On the same date a show cause order was issued and served on the applicant.

On February 10, 1984, the applicant appeared with his attorney before Judge Moore for the hearing before another district judge as contemplated by Article 1911a, V.A.C.S. Thereupon the applicant voluntarily withdrew his request for a hearing before another district judge to determine his guilt or innocence of contempt for acts committed before Judge Metcalfe on January 23, 1984.

Judge Moore then ordered the matter returned to Judge Ovard, Presiding Judge of the Administrative District, for transfer to Judge Metcalfe of the said Criminal District Court No. 2 for further proceedings pursuant to the original order of contempt.

On February 10, 1984, Judge Ovard returned the matter to Judge Metcalfe for further proceedings pursuant to the original order of contempt. Applicant then sought relief by filing this original application for writ of habeas corpus, and applicant has been released on his personal bond pending the disposition of this matter and until further order of this court.³

Applicant argues that the order of contempt is void in that there is no evidence to support the respondent judge’s' conclusion that the question propounded to the prose-cutrix was intentionally posed, and further there was no violation of the mandate of V.T.C.A., Penal Code, § 22.065.

He calls attention to the colloquy with the court following the asking of the question, that he understood the court’s order and § 22.065 to refer to sexual conduct— that is promiscuity on the part of the prose-cutrix, and not as to whether she had been the victim of a previous rape, the conduct of another individual. See, V.T.C.A., Penal Code, § 21.02 (1974) (now see § 22.011, effective Sept. 1, 1983).

V.T.C.A., Penal Code, § 22.065, provides:

“(a) Evidence of specific instances of the victim’s sexual conduct, opinion evidence of the victim’s sexual conduct, and reputation evidence of the victim’s sexual conduct may be admitted under Sections 22.011 and 22.021 of this code only if, and only to the extent that, the judge finds that the evidence is material to a fact at issue in the case and that its inflammatory or prejudicial nature does not outweigh its probative value.

“(b) If the defendant proposes to ask any question concerning specific instances, opinion evidence, or reputation evidence of the victim’s sexual conduct, either by direct examination or cross-examination of any witness, the defendant must inform the court out of the hearing of the jury prior to asking any such question. After this notice, the court shall conduct an in camera hearing, recorded by the court reporter, to determine whether the proposed evidence is admissible under Subsection (a) of this section. The court shall determine what evidence is admissible and shall accordingly limit the questioning. The defendant shall not go outside these limits nor refer to any evidence ruled inadmissible in camera without prior approval of the court without the presence of the jury.

“(c) The court shall seal the record of the in camera hearing required in Subsection (b) of this section for delivery to the appellate court in the event of an appeal.

“(d) This section does not limit the right of the state or the accused to impeach credibility by showing prior felony convictions nor the right of the accused to produce evidence of promiscuous sexual conduct of a child 14 years old or older as a defense to sexual assault, aggravated sexual assault, or indecency with a child. If evidence of a previous felony conviction involving sexual conduct or evidence of promiscuous sexual conduct is admitted, the court shall instruct the jury as to the purpose of the evidence and as to its limited use.” [Added by Acts 1975, 64th Leg., p. 477, ch. 203, § 3, eff. Sept. 1, 1975. Renumbered from § 21.13 (Penal Code) and amended by Acts 1983, 68th Leg., p. 5315, ch. 977, § 4, eff. Sept. 1, 1983.]

Appellant argues that the term “sexual conduct” is not defined for the purpose of the statute, nor is the term defined elsewhere in the Penal code or the Code of Criminal Procedure. Appellant stated he has been unable to find any case where this court has intimated that an assault upon a person by another individual involves conduct by the person assaulted, whether sexual in nature or otherwise. He calls attention to the fact that conduct is defined in V.T.C.A., Penal Code, § 1.07(a)(8), as meaning “an act or omission and its accompanying mental state.” and he further argues that whether a person has been raped, or assaulted in any other manner, does not involve an act or omission with an accompanying mental state on the part of that person, the victim of the assault. Appellant thus contends his asking of the question did not violate § 22.065, supra.

We understand appellant’s argument, but given the history -of the statute, its forerunner § 21.13, and the purpose of the statute to be served, we do not give the term “sexual conduct” as used in § 22.065 the limited meaning urged by appellant. The term should be given its normal meaning and common usage.

V.T.C.A., Penal Code, § 1.05 (Construction of Code), provides:

“(a) The rule that a penal statute is to be strictly construed does not apply to this code. The provisions of this code shall be construed according to the fair import of their terms, to promote justice and effect the objectives of the code.

“(b) Unless a different construction is required by the context, Sections 2.01, 2.02, 2.04, 2.05, and 3.01 through 3.12 of the Code Construction Act (Article 5429b-2, Vernon’s Texas Civil Statutes) apply to the construction of this code.”

Section 2.01 of Article 5429b-2, V.A.C.S. (Code Construction Act), provides:

“Words and phrases shall be read in context and construed according to the rules of grammar and common usage. Words and phrases that have acquired a technical or particular meaning, whether by legislative definition or otherwise, shall be construed accordingly.”

The term “sexual conduct” has not been statutorily defined nor has it acquired a technical meaning by case or decisional law or otherwise.

Black’s Law Dictionary, DeLuxe Fourth Edition, defines “conduct” as “personal behavior; deportment; mode of action; any positive or negative act.” Random House Dictionary of the English Language, Unabridged Edition, 1967 defines “conduct” as “personal behavior; way of acting; deportment,” and defines “sexual” as “of or pertaining to sex; sexual matters.”

The definition of “conduct” in V.T.C.A., Penal Code, § 1.07(a)(8), “an act or omission and its accompany mental state” is no more specific. It does not state that a “culpable” mental state must accompany any “conduct” whenever that term is used in the Penal Code. Nor does it state that you cannot have “conduct” without a mental state.

Reading the phrase or term “sexual conduct” in the context in which it is used in § 22.065 and in accordance with common usage, we hold that it encompasses sexual activity or conduct whether willingly engaged in or not, including situations where the “victim” to whom § 22.065 is applicable was involved in a prior rape offense, alleged offense or situation. Conduct is conduct, whether it’s voluntary, involuntary, initiated by the victim, or initiated by another and involuntarily accepted or participated in by the victim. See and cf. Stone v. State, 574 S.W.2d 85, 89 (Tex.Cr.App.1978).⁴

It is clear from a reading of the statute, its purpose⁵ and the spirit of the law itself that a prior rape is “sexual conduct” of the victim, even though it is initiated by another and then involuntarily engaged in by the victim.

We reject applicant’s argument the propounding of the question to the prosecu-trix in the instant case was not a violation of the mandate of the statute (§ 22.065) and the trial court’s order. The applicant, an attorney and an officer of the court, could easily perceive the thrust of the statute, and knew or should have known from the beginning that he was skating on thin ice. If he had needed clarification, he could have easily approached the bench outside the jury’s hearing. He chose instead to ask a question of the prosecutrix which he acknowledges was an inquiry of whether she had been raped before. He took a chance and lost. We find no merit in his contention that he did not intend to violate the order of the court or § 22.065.

Applicant further contends that before contempt will lie for violation of a court order, the order must spell out the details of compliance in clear, specific and unambiguous terms, so that such person will readily know exactly what duties or obligations are imposed upon him. He cites, inter alia, Ex parte Smiley, 626 S.W.2d 817 (Tex.App.1981); Ex parte Slavin, 412 S.W.2d 43 (Tex.1967); Ex parte Ballard, 632 S.W.2d 660 (Tex.App.1982). He then argues the trial court’s order was susceptible of more than one construction and ambiguity and thus was not legally enforceable. Applicant also advances the previous argument as to the meaning of “sexual conduct” which we have already rejected. We find no merit in appellant’s contention.

To establish “contempt” of court, it is not the purpose or intent to act which controls, but the act itself must be such as amounts to contempt of court. Ex parte Bailey, 142 Tex.Cr.R. 582, 155 S.W.2d 927 (1941); Ex parte Dowdle, 309 S.W.2d 458 (Tex.Cr.App.1958); Ex parte Jacobs, 664 S.W.2d 360 (Tex.Cr.App.1984). The essence of “contempt” is that the conduct obstructs or tends to obstruct the proper administration of justice. Ex parte Salfen, 618 S.W.2d 766 (Tex.Cr.App.1981).

Under the circumstances presented we do not find the court abused its discretion in finding the applicant guilty of contempt.

The relief prayed for is denied.

TEAGUE, J., dissents.

1 . In contempt proceedings there is no remedy by appeal. Ex parte Cardwell, 416 S.W.2d 382 (Tex.1967); Arnold v. State, 493 S.W.2d 801 (Tex.Cr.App.1973); Ex parte Moorehouse, 614 S.W.2d 450 (Tex.Cr.App.1981). See also 13 Tex. Jur.2d, Contempt, § 62, pp. 270-271.

2 . Article 1911a, § 2(c), V.A.C.S., provides in part:

"(c) 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 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 alleged contempt occurred.”

An attorney representing his client in the trial of a case is an officer of the court, Ex parte Howell, 488 S.W.2d 123 (Tex.Cr.App.1972), and is under the provisions of Article 1911a, V.A.C.S. Ex parte Pink, 645 S.W.2d 262 (Tex.Cr.App.1982).

3 . The State appears to argue that since the applicant waived his right under Article 1911a, § 2(c), supra, to a hearing before another district judge to determine his guilt or innocence of the contempt, he is foreclosed from bringing this habeas corpus action. We do not agree.

4 . In Stone this court wrote:

“The mother’s testimony regarding instances of sexual abuses by other persons is evidence of the victim’s prior sexual conduct." See also Johnson v. State, 651 S.W.2d 434, 436 (Tex.App.-Dallas—1983, No PDR).

5 . See generally 9 Texas Tech Law Review, Vol. 9, pp. 563, 576-578 (1978); Baylor Law Review, Vol. 31, p. 317 (1979).