ACCEPTED 01-15-00019-CV FIRST COURT OF APPEALS HOUSTON, TEXAS 1/26/2015 10:52:24 AM CHRISTOPHER PRINE CLERK
No. 01-15-00019-CV FILED IN 1st COURT OF APPEALS HOUSTON, TEXAS IN THE 1/26/2015 10:52:24 AM COURT OF APPEALS CHRISTOPHER A. PRINE FOR THE Clerk
FIRST DISTRICT OF TEXAS
In Re CHARLES S. IUPE, JR., Relator.
Original Proceeding on Petition for Writ of Habeas Corpus from the Harris County, Texas Probate Court Number Three (3) Hon. Rory R. Olsen, Presiding, Trial Court Cause No. 417,216
RELATOR’S SUPPLEMENT TO PETITION FOR WRIT OF HABEAS CORPUS
Howard M. Reiner Jonathan S. Stoger Texas Bar No. 16754780 Texas Bar No. 00797504 problaw@aol.com jstoger@stogerlaw.com Howard M. Reiner & Associates The Stoger Law Firm 3410 Mercer Street 2301 Morse Houston, Texas 77027 Houston, Texas 77019 Tel: (713) 963-8004 Tel: (713) 522-2848 Fax: (713) 963-8044 Fax: (713) 522-1120
Attorneys for Relator
TO THE HONORABLE JUSTICES OF THE COURT OF APPEALS:
Relator, Charles S. Iupe, Jr., files this supplement to his Petition for Writ of
Habeas Corpus to address evidence included in his supplemental record.
I. Background of the Case
The trial court found Iupe in criminal contempt on December 18, 2014 for
allegedly failing to attend an October 9, 2014 contempt hearing. As highlighted in
Iupe’s original habeas corpus petition, the constitutional defect with this process is
that he was never charged by the court with failure to appear at the October
hearing, no show cause orders were ever issued or personally served on him on the
charge, and no hearing was ever held on the charge. The October 9 contempt
hearing was to address Iupe’s alleged failure to submit to a mental examination,
not to address his alleged failure to attend the October 9 hearing. Since failure to
appear, even for a contempt hearing, is constructive contempt and requires notice
of the failure to appear charge and a subsequent hearing on the charge, then Iupe’s
due process rights were violated by summarily holding him in contempt in
December without hearing.
II. Additional Evidence
Iupe was arrested on January 7, 2015 pursuant to the contempt judgment and
incarcerated in the Harris County Jail. To attempt to secure his release on bond, the
habeas corpus petition had to be prepared on an emergency basis.1 The Writ of
Commitment had not been returned yet and the court reporter’s record from the
October 9, 2014 hearing could not be secured. Since that time, the Writ has been
returned and the court reporter’s record has been prepared, and both are included in
a supplemental record.2
III. The October 9, 2014 Court Reporter’s Record
There was never a hearing on the charge of failure to appear at the October
9, 2014 setting, so there is no court reporter’s record on the charge. The October 9,
2014 hearing was to consider contempt for alleged failure to submit to the mental
examination only. The court reporter’s record from the October 9 hearing is likely
immaterial to this petition but has been obtained anyway. It is 27 pages long and
reflects the court’s determination that Iupe was not present, rulings on various
items of evidence, telephone testimony of the psychiatrist appointed to examine
Iupe, and specific argument by Iupe’s attorney-ad-litem, Howard M. Reiner, as to
why Iupe could not be held in contempt for alleged failure to submit to the mental
examination or alleged failure to appear in court.3
1 Iupe has since posted the required bond in cash and has been released from jail. 2 Certified copies of other court papers are also included in the supplemental record along with an affidavit of counsel attesting that all papers are authentic and certifying that no show cause orders were issued on the failure to appear charge and no hearings were ever held on the charge. 3 The court claimed that everyone stipulated that Iupe was not present, but there is nothing in the record to indicate that Iupe’s counsel made such a stipulation. (Supplemental Record Item 1 [RR 6:13-15]). 2
Specifically, as to contempt for alleged failure to submit to the mental
examination, Mr. Reiner argued:
But what is interesting is there is no specific provision as to this situation [in the Estates Code]. However, in the Texas Rules of Civil Procedure, under 215.26, it specifically says that the Court cannot hold somebody in contempt for failing to get examined.
And so the issue I have is since there is no specific – since there is no specific statute, I think the Texas Rules of Civil Procedure would control in this instance.
(Supplemental Record Item 1 [RR 17:16-24]).
As to possible contempt for failure to appear in court, Mr. Reiner argued:
Specifically, the order [for show cause to appear at the October 9 hearing] that he was served with says: Show cause, if any, why he should not be held in contempt for failure to appear for an independent mental exam as ordered by the Court on May 20th, directing him to undergo an independent medical exam.
If, in fact, he was going to be held in contempt for his failure to appear at the last hearing, he should have been apprised of that in a separate motion.
(Id. [RR 25:12-21]).
The court closed the hearing by asking counsel to submit briefing. (Id. [RR
26:15-20]). The court did not hold Iupe in contempt for alleged failure to submit to
the mental examination and has not done so subsequently.
The October 9 hearing should not have proceeded at all in the alleged
absence of Iupe. When an alleged contemnor fails to appear for a contempt
hearing, the court is not at liberty to proceed forward and conduct a trial in 3
absentia. Ex parte Johnson, 654 S.W.2d 415, 420-22 (Tex. 1983). Instead, the
alleged contemnor must be brought to court before the hearing may commence. Id.
So, upon determining that Iupe was not present, the court should have adjourned
proceedings until Iupe could be brought in. Everything that followed was error and
violated Iupe’s rights.
PRAYER
WHEREFORE, PREMISES CONSIDERED, Relator, Charles S. Iupe, Jr.,
prays that his Petition for Writ of Habeas Corpus be granted in all things and that a
Writ of Habeas Corpus be issued, that the original and nunc pro tunc contempt
judgments and orders of commitment be declared null and void, that he be ordered
permanently discharged from custody and that the fine imposed against him be
remitted and cancelled, that he be discharged from bond and that his cash bond
money be ordered returned, and that he be granted his costs and any further relief
that he is entitled to.
Respectfully submitted,
/s/ Howard M. Reiner /s/ Jonathan S. Stoger Howard M. Reiner Jonathan S. Stoger Texas Bar No. 16754780 Texas Bar No. 00797504 problaw@aol.com jstoger@stogerlaw.com Howard M. Reiner & Associates The Stoger Law Firm 3410 Mercer Street 2301 Morse Houston, Texas 77027 Houston, Texas 77019 4
Tel: (713) 963-8004 Tel: (713) 522-2848 Fax: (713) 963-8044 Fax: (713) 522-1120
Attorney-ad-Litem for Co-Counsel with Attorney-ad- Relator Charles S. Iupe, Jr. Litem for Relator Charles S. Iupe, Jr.
CERTIFICATION
I, attorney-ad-litem for Relator, Charles S. Iupe, Jr., certify that I have reviewed this supplement to petition and concluded that every factual statement in this supplement is supported by competent evidence included in the appendix, original record, or supplemental record.
/s/ Howard M.
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ACCEPTED 01-15-00019-CV FIRST COURT OF APPEALS HOUSTON, TEXAS 1/26/2015 10:52:24 AM CHRISTOPHER PRINE CLERK
No. 01-15-00019-CV FILED IN 1st COURT OF APPEALS HOUSTON, TEXAS IN THE 1/26/2015 10:52:24 AM COURT OF APPEALS CHRISTOPHER A. PRINE FOR THE Clerk
FIRST DISTRICT OF TEXAS
In Re CHARLES S. IUPE, JR., Relator.
Original Proceeding on Petition for Writ of Habeas Corpus from the Harris County, Texas Probate Court Number Three (3) Hon. Rory R. Olsen, Presiding, Trial Court Cause No. 417,216
RELATOR’S SUPPLEMENT TO PETITION FOR WRIT OF HABEAS CORPUS
Howard M. Reiner Jonathan S. Stoger Texas Bar No. 16754780 Texas Bar No. 00797504 problaw@aol.com jstoger@stogerlaw.com Howard M. Reiner & Associates The Stoger Law Firm 3410 Mercer Street 2301 Morse Houston, Texas 77027 Houston, Texas 77019 Tel: (713) 963-8004 Tel: (713) 522-2848 Fax: (713) 963-8044 Fax: (713) 522-1120
Attorneys for Relator
TO THE HONORABLE JUSTICES OF THE COURT OF APPEALS:
Relator, Charles S. Iupe, Jr., files this supplement to his Petition for Writ of
Habeas Corpus to address evidence included in his supplemental record.
I. Background of the Case
The trial court found Iupe in criminal contempt on December 18, 2014 for
allegedly failing to attend an October 9, 2014 contempt hearing. As highlighted in
Iupe’s original habeas corpus petition, the constitutional defect with this process is
that he was never charged by the court with failure to appear at the October
hearing, no show cause orders were ever issued or personally served on him on the
charge, and no hearing was ever held on the charge. The October 9 contempt
hearing was to address Iupe’s alleged failure to submit to a mental examination,
not to address his alleged failure to attend the October 9 hearing. Since failure to
appear, even for a contempt hearing, is constructive contempt and requires notice
of the failure to appear charge and a subsequent hearing on the charge, then Iupe’s
due process rights were violated by summarily holding him in contempt in
December without hearing.
II. Additional Evidence
Iupe was arrested on January 7, 2015 pursuant to the contempt judgment and
incarcerated in the Harris County Jail. To attempt to secure his release on bond, the
habeas corpus petition had to be prepared on an emergency basis.1 The Writ of
Commitment had not been returned yet and the court reporter’s record from the
October 9, 2014 hearing could not be secured. Since that time, the Writ has been
returned and the court reporter’s record has been prepared, and both are included in
a supplemental record.2
III. The October 9, 2014 Court Reporter’s Record
There was never a hearing on the charge of failure to appear at the October
9, 2014 setting, so there is no court reporter’s record on the charge. The October 9,
2014 hearing was to consider contempt for alleged failure to submit to the mental
examination only. The court reporter’s record from the October 9 hearing is likely
immaterial to this petition but has been obtained anyway. It is 27 pages long and
reflects the court’s determination that Iupe was not present, rulings on various
items of evidence, telephone testimony of the psychiatrist appointed to examine
Iupe, and specific argument by Iupe’s attorney-ad-litem, Howard M. Reiner, as to
why Iupe could not be held in contempt for alleged failure to submit to the mental
examination or alleged failure to appear in court.3
1 Iupe has since posted the required bond in cash and has been released from jail. 2 Certified copies of other court papers are also included in the supplemental record along with an affidavit of counsel attesting that all papers are authentic and certifying that no show cause orders were issued on the failure to appear charge and no hearings were ever held on the charge. 3 The court claimed that everyone stipulated that Iupe was not present, but there is nothing in the record to indicate that Iupe’s counsel made such a stipulation. (Supplemental Record Item 1 [RR 6:13-15]). 2
Specifically, as to contempt for alleged failure to submit to the mental
examination, Mr. Reiner argued:
But what is interesting is there is no specific provision as to this situation [in the Estates Code]. However, in the Texas Rules of Civil Procedure, under 215.26, it specifically says that the Court cannot hold somebody in contempt for failing to get examined.
And so the issue I have is since there is no specific – since there is no specific statute, I think the Texas Rules of Civil Procedure would control in this instance.
(Supplemental Record Item 1 [RR 17:16-24]).
As to possible contempt for failure to appear in court, Mr. Reiner argued:
Specifically, the order [for show cause to appear at the October 9 hearing] that he was served with says: Show cause, if any, why he should not be held in contempt for failure to appear for an independent mental exam as ordered by the Court on May 20th, directing him to undergo an independent medical exam.
If, in fact, he was going to be held in contempt for his failure to appear at the last hearing, he should have been apprised of that in a separate motion.
(Id. [RR 25:12-21]).
The court closed the hearing by asking counsel to submit briefing. (Id. [RR
26:15-20]). The court did not hold Iupe in contempt for alleged failure to submit to
the mental examination and has not done so subsequently.
The October 9 hearing should not have proceeded at all in the alleged
absence of Iupe. When an alleged contemnor fails to appear for a contempt
hearing, the court is not at liberty to proceed forward and conduct a trial in 3
absentia. Ex parte Johnson, 654 S.W.2d 415, 420-22 (Tex. 1983). Instead, the
alleged contemnor must be brought to court before the hearing may commence. Id.
So, upon determining that Iupe was not present, the court should have adjourned
proceedings until Iupe could be brought in. Everything that followed was error and
violated Iupe’s rights.
PRAYER
WHEREFORE, PREMISES CONSIDERED, Relator, Charles S. Iupe, Jr.,
prays that his Petition for Writ of Habeas Corpus be granted in all things and that a
Writ of Habeas Corpus be issued, that the original and nunc pro tunc contempt
judgments and orders of commitment be declared null and void, that he be ordered
permanently discharged from custody and that the fine imposed against him be
remitted and cancelled, that he be discharged from bond and that his cash bond
money be ordered returned, and that he be granted his costs and any further relief
that he is entitled to.
Respectfully submitted,
/s/ Howard M. Reiner /s/ Jonathan S. Stoger Howard M. Reiner Jonathan S. Stoger Texas Bar No. 16754780 Texas Bar No. 00797504 problaw@aol.com jstoger@stogerlaw.com Howard M. Reiner & Associates The Stoger Law Firm 3410 Mercer Street 2301 Morse Houston, Texas 77027 Houston, Texas 77019 4
Tel: (713) 963-8004 Tel: (713) 522-2848 Fax: (713) 963-8044 Fax: (713) 522-1120
Attorney-ad-Litem for Co-Counsel with Attorney-ad- Relator Charles S. Iupe, Jr. Litem for Relator Charles S. Iupe, Jr.
CERTIFICATION
I, attorney-ad-litem for Relator, Charles S. Iupe, Jr., certify that I have reviewed this supplement to petition and concluded that every factual statement in this supplement is supported by competent evidence included in the appendix, original record, or supplemental record.
/s/ Howard M. Reiner Howard M. Reiner
CERTIFICATE OF COMPLIANCE
I certify that this document contains 1046 words, as measured by the word count feature in Microsoft Word 2013, and was prepared in Times New Roman font with 14-point print.
CERTIFICATE OF SERVICE
I certify that on January 23, 2015, I served a true and correct copy of this Supplement to Petition on all parties and counsel, as reflected below, via e- service through efile.txcourts.gov.
Darlene Payne Smith dsmith@craincaton.com Courtney McMillan Lyssy clyssy@craincaton.com Crain, Caton & James, P.C. 1401 McKinney Street, Suite 1700 Houston, Texas 77019 Tel: (713) 658-2323 Fax: (713) 658-1921
Attorneys for Real Party-in-Interest Michael J. Iupe
Fatima Breland fbreland@sbcglobal.net The Breland Law Firm 2726 Bissonnet Street, No. 240-194 Houston, Texas 77005 Tel: (713) 661-1335 Fax: (713) 660-9264
Guardian-ad-Litem for Relator Charles S. Iupe, Jr.
Hon. Rory Olsen, Presiding Judge Harris County Probate Court Number Three 201 Caroline, 7th Floor Houston, Texas 77002 (Via e-filing with County Clerk)