in Re Christopher L. Graham
Opinion
ACCEPTED 03-14-00270-CV 5585831 THIRD COURT OF APPEALS AUSTIN, TEXAS 6/8/2015 2:43:19 PM NO.03-14-00270-CR V JEFFREY D. KYLE CLERK
IN THE 3rd COURT OF APPEALS FILED IN AUSTIN, TEXAS 3rd COURT OF APPEALS AUSTIN, TEXAS 6/8/2015 2:43:19 PM JEFFREY D. KYLE Clerk
On appeal from the 207th District Court of Comal County, Texas ORAL ARGUMENT REQUESTED
PETITION FOR WRIT OF HABEAS CORPUS, APPELLATE BRIEF, AND MOTION TO STAY JUDGMENT
CHRISTOPHER L. GRAHAM, Applicant, files the petition for writ of
habeas corpus, appeal and motion to stay judgment and in support of this petition
show the Court the following:
IDENTITY OF THE PARTIES
1. Petitioner, in the trial court is Christopher Graham, hereinafter referred to
as “Graham”
2. Petitioner is proceeding Pro Se in this matter, State Bar number
24047549, mailing address PO Box 226265, Dallas, Texas; Telephone
469-605-6846; email: clgraham@lgi-law.com
3. Respondent, in the trial court is the State of Texas
PETITION FOR WRIT OF HABEAS CORPUS, APPELLATE BRIEF, AND MOTION TO STAY JUDGMENT
4. Respondent’s counsel is the Office of the District Attorney Jennifer
Tharp; specific counsel handling this habeas corpus has not been
designated from the office of the district attorney or is unknown at this
time by Petitioner.
TABLE OF CONTENTS
5. Index of Authorities 2
6. Statement of the Case 4
7. Statement Regarding Oral Argument 6
8. Issues Presented 6
9. Statement of Facts 7
10. Summary of the Argument 10
11. Statement of Jurisdiction 11
12. Standard of Review 12
13. Argument 15
14. Prayer 28
15. Appendix 30
INDEX OF AUTHORITIES
a. Aguilar v. State, 621 S.W.2d 781 (Tex. Crim. App. 1981) b. Brown v. United States, 356 U.S. 148, 153, 78 S. Ct. 622, 2 L. Ed. 2d 589 (1958) c. Ex parte Acker, 949 S.W.2d 314, 316 (Tex.1997) PETITION FOR WRIT OF HABEAS CORPUS, APPELLATE BRIEF, AND MOTION TO STAY JUDGMENT
hearing, a court appointed attorney, a personal recognizance bond, and
that an administrative law judge be appointed in the case of a finding of
contempt. (CR Supplement 1:5-6)
18. The Court rescheduled the 3/13/2014 show cause hearing date to
4/8/2014 (CR Supplement 1:9)
19. On 4/8/2014 the court made a finding of contempt against Graham in
case number CR2013-366. (CR 1:24).
20. On 4/8/2014, Graham was committed to the Comal county jail (App. 1)
and released after payment of a $5,000 cash appeal bond (App. 2).
21. 4/21/2014, Graham filed notice of appeal (CR 1: 32) and a motion for
new trial (CR 1:35).
22. 4/28/2014, the Court denied Graham’s motion for new trial (CR 38).
23. 5/5/2014, Graham filed a request for a free transcript (CR Supplement
1:21).
24. 9/2/2014, the State filed its contest of Graham’s request for free transcript
and affidavit of indigence (CR Supplement 1:23)
25. 9/23/2014 a hearing was held on Graham’s request for a free transcript
and affidavit of indigence, and the Court denied Graham’s request to
proceed as indigent on appeal (CR 61)
PETITION FOR WRIT OF HABEAS CORPUS, APPELLATE BRIEF, AND MOTION TO STAY JUDGMENT
ff. Ex Parte Werblud, 536 S.W.2d 542 (Tex. 1976); In re Hammond, 155 S.W.3d 222 (Tex. App. El Paso 2004) gg. In Re Application of Mackay, 35 P.2d 385 (Cal. 1934) hh. In re Brown, 114 S.W.3d 7, 12-13 (Tex.App.—Amarillo 2003, orig. proceeding). ii. In re Farquhar ,492 F2d 561 (D.C. Cir. 1973) jj. In re Greene, 213 F.3d 223 (5th Cir., 2000) kk. In re Hammond, 155 S.W.3d 222 (Tex. App. El Paso 2004) ll. In re Monroe, 532 F.2d 424, 425–426 (5th Cir. [Tex.] 1976) mm. In re Office of the Atty. Gen., ___ S.W.3d ___ (Tex.2013) (No. 11- 0255; 3-8-13) nn. Lee v. State, 799 S.W.2d 750, 752-753 (Tex. Crim. App. 1990 oo. Roselle v. State, P.2d 486 (Okla. Crim. App. 1973) pp. Rowe v. Moore, 756 S.W.2d 117 (Tex. App. Houston 1st Dist. 1988 qq. Taylor v. District Court for the Fourth Judicial Dist., 434 P.2d 679 (Alaska 1967) rr. Williams v. Estelle, 4566 F.Supp. 1376 (S.D. Tex. 1983 ss. Wise v. Commonweath, 34 S.E. 453 (Va. 1899) tt. Tex. Cod. Crim. Proc. Art. 4.04 § 1 uu. Tex. Code. Crim. Proc. Art. 11.01 vv. Tex. Code Crim. Proc. Art. 11.23 ww. Tex. Code Crim. Proc. Art. 17.15(1), (2), (3), (4), (5) xx. Tex. Const. Art. 5 § 5; yy. Tex. Fam. Code §157.163 zz. Tex. Gov’t Code Sec. 21.002(d)
STATEMENT OF THE CASE
16. On 2/25/2014, State v. Chelsie Chenoweth, case number CR2013-366
was scheduled for arraignment (CR Supplement 1:20) and the Court
issued its show cause order against Graham claiming that Graham arrived
tardy to court . (CR 1:16)
17. On 3/10/2014, Graham filed his response contesting the show cause
order and requesting among other things a continuance of the show cause PETITION FOR WRIT OF HABEAS CORPUS, APPELLATE BRIEF, AND MOTION TO STAY JUDGMENT
hearing, a court appointed attorney, a personal recognizance bond, and
that an administrative law judge be appointed in the case of a finding of
18. The Court rescheduled the 3/13/2014 show cause hearing date to
19. On 4/8/2014 the court made a finding of contempt against Graham in
20. On 4/8/2014, Graham was committed to the Comal county jail (App. 1)
and released after payment of a $5,000 cash appeal bond (App. 2).
21. 4/21/2014, Graham filed notice of appeal (CR 1: 32) and a motion for
22. 4/28/2014, the Court denied Graham’s motion for new trial (CR 38).
23. 5/5/2014, Graham filed a request for a free transcript (CR Supplement
24. 9/2/2014, the State filed its contest of Graham’s request for free transcript
25. 9/23/2014 a hearing was held on Graham’s request for a free transcript
and affidavit of indigence, and the Court denied Graham’s request to
PETITION FOR WRIT OF HABEAS CORPUS, APPELLATE BRIEF, AND MOTION TO STAY JUDGMENT
26. 10/2/2014 Graham filed its motion challenging the order sustaining the
State’s contest. (CR 1:78).
27. 3/19/2015 Graham filed an Application for Writ of Habeas Corpus. (CR
2nd Supplement 1:4).
28. Graham received no response to the request for a hearing on the
application for writ of habeas corpus, and thus requested that the trial
court take action on the application either by setting a hearing or ruling
on the application. The trial court has done neither. (CR 2nd
Supplement 1:9).
STATEMENT REGRADING ORAL ARGUMENT
29. Oral argument is requested by Graham at this time.
ISSUES PRESENTED
30. Is a finding of contempt against an attorney wrong where: 1)the
Free access — add to your briefcase to read the full text and ask questions with AI
ACCEPTED 03-14-00270-CV 5585831 THIRD COURT OF APPEALS AUSTIN, TEXAS 6/8/2015 2:43:19 PM NO.03-14-00270-CR V JEFFREY D. KYLE CLERK
IN THE 3rd COURT OF APPEALS FILED IN AUSTIN, TEXAS 3rd COURT OF APPEALS AUSTIN, TEXAS 6/8/2015 2:43:19 PM JEFFREY D. KYLE Clerk
On appeal from the 207th District Court of Comal County, Texas ORAL ARGUMENT REQUESTED
PETITION FOR WRIT OF HABEAS CORPUS, APPELLATE BRIEF, AND MOTION TO STAY JUDGMENT
CHRISTOPHER L. GRAHAM, Applicant, files the petition for writ of
habeas corpus, appeal and motion to stay judgment and in support of this petition
show the Court the following:
IDENTITY OF THE PARTIES
1. Petitioner, in the trial court is Christopher Graham, hereinafter referred to
as “Graham”
2. Petitioner is proceeding Pro Se in this matter, State Bar number
24047549, mailing address PO Box 226265, Dallas, Texas; Telephone
469-605-6846; email: clgraham@lgi-law.com
3. Respondent, in the trial court is the State of Texas
PETITION FOR WRIT OF HABEAS CORPUS, APPELLATE BRIEF, AND MOTION TO STAY JUDGMENT
4. Respondent’s counsel is the Office of the District Attorney Jennifer
Tharp; specific counsel handling this habeas corpus has not been
designated from the office of the district attorney or is unknown at this
time by Petitioner.
TABLE OF CONTENTS
5. Index of Authorities 2
6. Statement of the Case 4
7. Statement Regarding Oral Argument 6
8. Issues Presented 6
9. Statement of Facts 7
10. Summary of the Argument 10
11. Statement of Jurisdiction 11
12. Standard of Review 12
13. Argument 15
14. Prayer 28
15. Appendix 30
INDEX OF AUTHORITIES
a. Aguilar v. State, 621 S.W.2d 781 (Tex. Crim. App. 1981) b. Brown v. United States, 356 U.S. 148, 153, 78 S. Ct. 622, 2 L. Ed. 2d 589 (1958) c. Ex parte Acker, 949 S.W.2d 314, 316 (Tex.1997) PETITION FOR WRIT OF HABEAS CORPUS, APPELLATE BRIEF, AND MOTION TO STAY JUDGMENT
hearing, a court appointed attorney, a personal recognizance bond, and
that an administrative law judge be appointed in the case of a finding of
contempt. (CR Supplement 1:5-6)
18. The Court rescheduled the 3/13/2014 show cause hearing date to
4/8/2014 (CR Supplement 1:9)
19. On 4/8/2014 the court made a finding of contempt against Graham in
case number CR2013-366. (CR 1:24).
20. On 4/8/2014, Graham was committed to the Comal county jail (App. 1)
and released after payment of a $5,000 cash appeal bond (App. 2).
21. 4/21/2014, Graham filed notice of appeal (CR 1: 32) and a motion for
new trial (CR 1:35).
22. 4/28/2014, the Court denied Graham’s motion for new trial (CR 38).
23. 5/5/2014, Graham filed a request for a free transcript (CR Supplement
1:21).
24. 9/2/2014, the State filed its contest of Graham’s request for free transcript
and affidavit of indigence (CR Supplement 1:23)
25. 9/23/2014 a hearing was held on Graham’s request for a free transcript
and affidavit of indigence, and the Court denied Graham’s request to
proceed as indigent on appeal (CR 61)
PETITION FOR WRIT OF HABEAS CORPUS, APPELLATE BRIEF, AND MOTION TO STAY JUDGMENT
ff. Ex Parte Werblud, 536 S.W.2d 542 (Tex. 1976); In re Hammond, 155 S.W.3d 222 (Tex. App. El Paso 2004) gg. In Re Application of Mackay, 35 P.2d 385 (Cal. 1934) hh. In re Brown, 114 S.W.3d 7, 12-13 (Tex.App.—Amarillo 2003, orig. proceeding). ii. In re Farquhar ,492 F2d 561 (D.C. Cir. 1973) jj. In re Greene, 213 F.3d 223 (5th Cir., 2000) kk. In re Hammond, 155 S.W.3d 222 (Tex. App. El Paso 2004) ll. In re Monroe, 532 F.2d 424, 425–426 (5th Cir. [Tex.] 1976) mm. In re Office of the Atty. Gen., ___ S.W.3d ___ (Tex.2013) (No. 11- 0255; 3-8-13) nn. Lee v. State, 799 S.W.2d 750, 752-753 (Tex. Crim. App. 1990 oo. Roselle v. State, P.2d 486 (Okla. Crim. App. 1973) pp. Rowe v. Moore, 756 S.W.2d 117 (Tex. App. Houston 1st Dist. 1988 qq. Taylor v. District Court for the Fourth Judicial Dist., 434 P.2d 679 (Alaska 1967) rr. Williams v. Estelle, 4566 F.Supp. 1376 (S.D. Tex. 1983 ss. Wise v. Commonweath, 34 S.E. 453 (Va. 1899) tt. Tex. Cod. Crim. Proc. Art. 4.04 § 1 uu. Tex. Code. Crim. Proc. Art. 11.01 vv. Tex. Code Crim. Proc. Art. 11.23 ww. Tex. Code Crim. Proc. Art. 17.15(1), (2), (3), (4), (5) xx. Tex. Const. Art. 5 § 5; yy. Tex. Fam. Code §157.163 zz. Tex. Gov’t Code Sec. 21.002(d)
STATEMENT OF THE CASE
16. On 2/25/2014, State v. Chelsie Chenoweth, case number CR2013-366
was scheduled for arraignment (CR Supplement 1:20) and the Court
issued its show cause order against Graham claiming that Graham arrived
tardy to court . (CR 1:16)
17. On 3/10/2014, Graham filed his response contesting the show cause
order and requesting among other things a continuance of the show cause PETITION FOR WRIT OF HABEAS CORPUS, APPELLATE BRIEF, AND MOTION TO STAY JUDGMENT
hearing, a court appointed attorney, a personal recognizance bond, and
that an administrative law judge be appointed in the case of a finding of
18. The Court rescheduled the 3/13/2014 show cause hearing date to
19. On 4/8/2014 the court made a finding of contempt against Graham in
20. On 4/8/2014, Graham was committed to the Comal county jail (App. 1)
and released after payment of a $5,000 cash appeal bond (App. 2).
21. 4/21/2014, Graham filed notice of appeal (CR 1: 32) and a motion for
22. 4/28/2014, the Court denied Graham’s motion for new trial (CR 38).
23. 5/5/2014, Graham filed a request for a free transcript (CR Supplement
24. 9/2/2014, the State filed its contest of Graham’s request for free transcript
25. 9/23/2014 a hearing was held on Graham’s request for a free transcript
and affidavit of indigence, and the Court denied Graham’s request to
PETITION FOR WRIT OF HABEAS CORPUS, APPELLATE BRIEF, AND MOTION TO STAY JUDGMENT
26. 10/2/2014 Graham filed its motion challenging the order sustaining the
State’s contest. (CR 1:78).
27. 3/19/2015 Graham filed an Application for Writ of Habeas Corpus. (CR
2nd Supplement 1:4).
28. Graham received no response to the request for a hearing on the
application for writ of habeas corpus, and thus requested that the trial
court take action on the application either by setting a hearing or ruling
on the application. The trial court has done neither. (CR 2nd
Supplement 1:9).
STATEMENT REGRADING ORAL ARGUMENT
29. Oral argument is requested by Graham at this time.
ISSUES PRESENTED
30. Is a finding of contempt against an attorney wrong where: 1)the
attorney appeared at court a few minutes late after having been delayed by traffic
and jail transport delays after having been conducting a client interview in a
nearby jail during the recess for a client who was scheduled for jury trial in a few
days; 2) where the court issuing the show cause order had gone on a lunch break
for more than an hour and when the attorney and client had completed the
documentation for the disposition of the case and where the court knew that the
PETITION FOR WRIT OF HABEAS CORPUS, APPELLATE BRIEF, AND MOTION TO STAY JUDGMENT
attorney and the client had been waiting for several hours to dispose of the case; 3)
where the purpose of the scheduled hearing for client had been completed by
attorney; 4) where the court singled out attorney for punishment since the court
never issued show cause orders to other attorneys tardy by a few minutes to court;
5) where there was no evidence of willful intent to disregard the Court’s order, 6)
where there was no admonition to the attorney that a failure to return at the
designated time would result in contempt; 7) where the finding of contempt was
made by an administrative judge where there was no previous finding of contempt
by the trial judge; and 8) where the Court did not advise or afford the alleged
contemnor with the right to counsel?
STATEMENT OF FACTS
31. Graham is currently being illegally restrained as a result of the actions of
administrative law Judge Douglas Shaver.
32. The basis of the restraint is the contempt order issued by Judge Shaver on
4/8/2014 (CR 1:24)
33. On 2/12/2014, Graham called the court to request that the case State v.
Chelsie Chenoweth, be scheduled for court on 2/13/2014. Graham was
told by the court coordinator that the case had been set for hearing. (RR
2:43 l. 25, RR 2:44 l. 1-8)
PETITION FOR WRIT OF HABEAS CORPUS, APPELLATE BRIEF, AND MOTION TO STAY JUDGMENT
34. On 2/13/2014, Movant appeared at court expecting to be able to resolve
this case and was told that the Court had erred and that case had not been
added to that day’s docket. Court personnel told Graham to return to
court on 2/25/2014. (RR 2:43 l. 25, RR 2:44 l. 1-8)
35. On 2/25/2014, the case State v. Chenoweth, case number 2013CR366
had been set for arraignment hearing. (CR Supplement 1:20). Graham
arrived at the court shortly before 9 am, but was in the hallway talking to
a client on the phone. (RR 2:47 l. 21, RR 2: 48 l. 1)
36. Client Chenoweth had already checked with the court (RR 2:30 l.15) and
shortly thereafter, at around 9 am, Graham announced to the Court that
he was prepared to proceed on the arraignment hearing (RR 2: 47 l. 11-
18).
37. Shortly before 10 am and after a few minutes of negotiation with the
prosecutor in the case, arraignment documents and plea documents were
signed and prepared by client Chenoweth indicating that she understood
her charges in the case and the plea bargain terms. (RR 2:44 l. 16-22).
38. For several hours, Graham and client Chenoweth waited for the Court to
hear and enter the plea in the case all to no avail. (RR 2:44 l.25, RR 2:45
l. 1-4).
PETITION FOR WRIT OF HABEAS CORPUS, APPELLATE BRIEF, AND MOTION TO STAY JUDGMENT
39. Movant had to bring the Chenoweth case to the Court’s attention several
times that the case was ready for plea and ready to be disposed of. (RR
3:48 l. 1-10); (RR 3:62 l. 18-22)
40. The Court took a break for an extended period and did not hear the plea
for Graham’s client. Around 11:45am, the Court entered recess until
1:15pm for lunch. (RR 3:63 l. 2-9).
41. After Court resumed the Court still did not hear Graham’s client’s plea
(RR 3: 74 l. 11-14).
42. Before breaking for lunch the Court indicated that before Graham’s plea
was to be heard, that there would be several contested cases that the
Court would hear before it considered the Chenoweth plea. (RR 3:62 l. 5-
10) ; (RR 3:62 l. 20-21); (RR 3:63 l. 5-6); (RR 3:62 l. 13-21).
43. During the recess, Graham went to the Bexar county jail in order to talk
briefly with a client concerning his upcoming jury trial. (RR 3:45 l. 5-
14).
44. Due to heavy traffic and delays in transporting inmates in the Bexar
county jail, Graham was delayed in coming back to the court by a few
minutes. Graham arrived in the courtroom at approximately 1:35pm.
(RR 3:54 l. 4-8).
PETITION FOR WRIT OF HABEAS CORPUS, APPELLATE BRIEF, AND MOTION TO STAY JUDGMENT
45. When Graham entered the courtroom client Chenoweth had been released
and the trial Court presented him with a show cause order, alleging that
attorney Graham was in contempt of court. (RR 2:46, l. 4-7).
46. The show cause hearing was scheduled for 3/13/2014 (CR 1:16),
however Graham filed a request for continuance of the hearing because
he was scheduled for court in another jurisdiction on the same day. (CR
Supplement 1:4-6)
47. No contempt finding or order was ever made or entered at the show cause
hearing of 3/13/2014 (CR Supplement 1:21). The case was referred to
administrative law judge Doug Shaver for hearing on 4/8/2014. (CR
Supplement 1:7).
48. On 4/8/2014, Graham was wrongly found guilty of contempt due to being
tardy by a few minutes and because he did not appear at the 3/13/2014
show cause hearing even though a continuance was requested. (CR
Supplement 1:12)
49. The sentence assessed against Graham was 15 days in the Comal County
jail and a $300 fine (CR Supplement 1:12). Graham’s bond was set at
$5,000 cash (CR Supplement 1:15). Graham paid the $5,000 (five
thousand dollar) cash bond in order to secure his release. (CR
Supplement 1:16). PETITION FOR WRIT OF HABEAS CORPUS, APPELLATE BRIEF, AND MOTION TO STAY JUDGMENT
SUMMARY OF ARGUMENT
50. The trial court 1) failed to provide Graham with his right to an
attorney 2) failed to inquire into his qualification for a court appointed attorney
when such a request was made 3) failed to inform Graham about his right to a jury
trial 4) failed to make a contempt finding before transferring the case for hearing
before an administrative law judge 5) failed to evaluate the evidence properly in
finding contempt since there was no evidence of intentional disrespect to the
Court or actual delay in the administration of justice 6) imposed a draconian
punishment on Graham of 15 days incarceration which is a violation of his due
process rights and 7) imposed a unsupportable amount for an appeals bond when
it was not substantiated by the evidence. Consequently, Graham’s contempt
finding must be reversed
STATEMENT OF JURISDICTION
46. The court of appeals has appellate jurisdiction in criminal habeas corpus
matters Denby v. State, 627 S.W.2d 435 (Tex. App., Houston [1st Dist.] 1981, no
pet.), cert. denied, 462 U.S. 1110 (1983). Since the function of a writ of habeas
corpus is to secure a person’s release from confinement or restraint, the remedy
may be used only when a court has entered an order restraining the contemnor ,
see Tex. Code. Crim. Proc. Art. 11.01. However, this does not mean that the
PETITION FOR WRIT OF HABEAS CORPUS, APPELLATE BRIEF, AND MOTION TO STAY JUDGMENT
contemnor must actually be confined while awaiting the disposition of the writ of
habeas corpus. It is possible to obtain a stay of the contempt order while seeking
habeas corpus relief, see Ex parte Camara, 628 S.W.2d 803, 804 (Tex. Crim. App.
1982). A person free on bond is also considered to be in custody for habeas corpus
purposes, see Ex parte Trillo, 540 S.W.2d 728, 731 (Tex. Crim. App.
1976), overruled on other grounds, Aguilar v. State, 621 S.W.2d 781 (Tex. Crim.
App. 1981). Graham has filed an application for writ of habeas corpus with the
trial court (CR 2nd Supplement 1:4); therefore, this court has appellate jurisdiction
to decide this matter.
STANDARD OF REVIEW
47. Courts are expected to guard against confusing acts that offend their
sensibilities with acts that are actually disrespectful or that obstruct the
administration of justice, see Brown v. United States, 356 U.S. 148, 153, 78 S. Ct.
622, 2 L. Ed. 2d 589 (1958). The act itself must be shown to be intentionally
disrespectful; whether the statement offended the court is not the test. Contempt is
not to be presumed; on the contrary, it is presumed not to exist, Ex parte Taylor,
807 S.W.2d 746, 748 (Tex. Crim. App. 1991). Therefore, the fact that conduct may
be irritating or exasperating does not necessarily render it contemptuous, see Ex
parte Pink, 746 S.W.2d 758, 762 (Tex. Crim. App. 1988). To sustain contempt
proceedings, the order disobeyed must specifically command or order the PETITION FOR WRIT OF HABEAS CORPUS, APPELLATE BRIEF, AND MOTION TO STAY JUDGMENT
individual to do or not to do some act or acts. The order must provide the person
with specific and definite notice of the acts the person must or must not perform in
order to avoid being held in contempt, Lee v. State, 799 S.W.2d 750, 752-753
(Tex. Crim. App. 1990). Furthermore, failure to appear in court due to conflicting
court settings generally is not appropriate, see Ex parte Butler, 372 S.W.2d 686,
687 (Tex. Crim. App. 1963)—contempt improper for minor tardiness caused by
conflicting settings in courts of equal jurisdiction.
48. A writ of habeas corpus may be issued in cases in which the court had no
power to issue the contempt order, as well as cases in which the power existed but
it was exercised in a manner or degree not authorized by law Tex. Code Crim.
Proc. Art. 11.23. Thus, a contemnor can challenge the court’s jurisdiction to render
a contempt judgment as well as the lawfulness of the way in which it enforced its
jurisdiction, see Ex parte Salfen, 618 S.W.2d 766, 769 (Tex. Crim. App. 1981).
49. A contemnor may also challenge the sufficiency of the evidence to support
the contempt order. When reviewing the basis for the contempt order, the appellate
court will view the evidence in the light most favorable to the order, see Ex parte
Murphy, 669 S.W.2d 320, 322 (Tex. Crim. App. 1984), cert. denied, 469 U.S. 823
(1984). However, a contempt order may be set aside if the Court determines that
the lower court had no reasonable basis for entering a contempt order, see Ex parte
Butler, 372 S.W.2d 686, 687 (Tex. Crim. App. 1963). A court will issue a writ of PETITION FOR WRIT OF HABEAS CORPUS, APPELLATE BRIEF, AND MOTION TO STAY JUDGMENT
habeas corpus if the order underlying the contempt is void or if the contempt order
itself is void either because the order was beyond the power of the court or because
it deprived the contemnor of his or her liberty without due process of law. Ex Parte
Barnett, 600 S.W.2d 252 (Tex. 1980). The Court will take into consideration the
entire record to determine whether due process was accorded. Ex Parte Cardwell,
416 S.W.2d 382 (Tex. 1967). The Court will decide whether the trial court’s
contempt finding is so completely without evidentiary support that it deprives the
relator of liberty without due process of law. In re Hammond, 155 S.W.3d 222
(Tex. App. El Paso 2004); Ex Parte Hightower, 877 S.W.2d 17 (Tex. App. Dallas
1994), writ dismissed w.o.j., (July 28, 1994).
50. In reviewing the trial court’s application of the law to the facts in a contempt
proceeding, the appellate court is to apply the same standard used in original
mandamus proceedings for review of a trial court’s application of the law. Ex Parte
Hightower, 877 S.W.2d 17 (Tex. App. Dallas 1994), writ dismissed w.o.j., (July
28, 1994). The Appellate court reviews the trial court’s determination of the legal
principles controlling its ruling with less deference than it reviews its factual
findings. A trial court has no discretion in determining what the law is or in
applying the law to the facts, and a trial courts clear failure to analyze or apply the
law correctly is an abuse of discretion. Ex Parte Hightower, 877 S.W.2d 17 (Tex.
App. Dallas 1994), writ dismissed w.o.j., (July 28, 1994). PETITION FOR WRIT OF HABEAS CORPUS, APPELLATE BRIEF, AND MOTION TO STAY JUDGMENT
ARGUMENT
a. The contempt finding must be overturned because Graham was not afforded an attorney at the contempt hearing.
51. Graham was not afforded the right to an attorney. The court must inform a
pro se party facing incarceration for indirect contempt (whether civil or criminal)
of the right to an attorney. Ex parte Acker, 949 S.W.2d 314, 316 (Tex.1997); Ex
parte Strickland, 724 S.W.2d 132, 134 (Tex.App.—Eastland 1987, orig.
proceeding); see Tex. Fam. Code §157.163 see, e.g., Ex parte Hiester, 572 S.W.2d
300, 303 (Tex.1978) (trial court could not hold contempt hearing when
contemnor’s attorney was delayed in federal court); see also Ex parte Occhipenti,
796 S.W.2d 805, 809 (Tex.App.—Houston [1st Dist.] 1990, orig. proceeding)
(contempt order not required to include recitation that contemnor knowingly and
intelligently waived right to counsel). Furthermore, if the pro se party facing
incarceration is indigent, the court must inform the party of the right to a court-
appointed attorney. Ex parte Keene, 909 S.W.2d 507, 508 (Tex.1995); Ex parte
Strickland, 724 S.W.2d at 135. Graham in his Response to Show Cause Order
made a request for a court appointed attorney (CR Supplement 1:5). The Court
summarily denied the request and refused to conduct a hearing into Graham’s
indigency (RR 2:5, l. 6-11). Such failure is a violation of Applicant’s due process
rights.
PETITION FOR WRIT OF HABEAS CORPUS, APPELLATE BRIEF, AND MOTION TO STAY JUDGMENT
b. Graham was not advised of his right against self-incrimination at the contempt hearing before he testified at the contempt hearing
52. Graham was not notified by the Court of his right against self-incrimination.
A party facing incarceration for criminal contempt must be notified of the right
against self-incrimination if the contemnor was compelled to testify in a criminal
proceeding. See In re Brown, 114 S.W.3d 7, 12-13 (Tex.App.—Amarillo 2003,
orig. proceeding). The Court did not provide any notification to Graham of his
rights against self-incrimination. Such failure was a violation of Applicant due
process rights. (RR 2:42 l. 22-24, RR 2:43 l. 2-10).
c. Graham was not afforded a right to a jury trial when he was faced with possible punishment over 6 months at the contempt hearing
53. Graham was entitled to a jury trial. A person accused of contempt has a
right to the jury trial if the alleged offense is criminal rather than civil; constructive
rather than direct, and serious rather than petty; that is where the possible
punishment exceeds 6 months imprisonment. Ex Parte Werblud, 536 S.W.2d 542
(Tex. 1976); In re Hammond, 155 S.W.3d 222 (Tex. App. El Paso 2004). Criminal
contempt is punitive. The purpose of a criminal contempt order is to punish the
contemnor for some act that affronted the dignity and authority of the court. Ex
parte Werblud, 536 S.W.2d at 545; Ex parte Reese, 23 S.W.3d 54, 56 (Tex.App.—
Austin 2000, pet. ref’d). In contrast to civil contempt, compliance with the court’s
PETITION FOR WRIT OF HABEAS CORPUS, APPELLATE BRIEF, AND MOTION TO STAY JUDGMENT
criminal contempt order will not relieve the contemnor from being punished for
her past acts. See Ex Parte Laymon, 679 S.W.2d 532, 534 (Tex.App.—Houston
[1st Dist.] 1984, orig. proceeding). An order for criminal contempt will specify a
certain amount of time that the contemnor must spend in jail. See In re Office of
the Atty. Gen., ___ S.W.3d ___ (Tex.2013) (No. 11-0255; 3-8-13). Indirect, or
constructive, contempt is committed outside the presence of the court. Ex parte
Durham, 921 S.W.2d 482, 485 (Tex.App.—Corpus Christi 1996, orig. proceeding)
(disobeying discovery orders); Ex parte Shields, 779 S.W.2d 99, 101 (Tex.App.—
Houston [1st Dist.] 1989, orig. proceeding) (disobeying injunctive order); see
also In re Reece, 341 S.W.3d at 367 (perjury committed during deposition is
indirect contempt if perjury obstructs court’s performance of its duties). Indirect
contempt requires testimony or documentary evidence to establish the
contemptuous conduct. Ex parte Daniels, 722 S.W.2d 707, 709 (Tex.Crim.App.
1987).
54. The contempt order in this case specified a certain number of days of
incarceration of Graham, thus this is an instance of criminal contempt. (CR 1:24)
This case involves a case of constructive contempt because the circumstances of
the time of arrival of Graham were outside of the presence of the court and had to
be determined by testimony during a contempt hearing. (RR 2:43; where Graham
testifies to circumstances of delay in arriving at court). Graham, however, was PETITION FOR RIT OF HABEAS CORPUS, APPELLATE BRIEF, AND MOTION TO STAY JUDGMENT
faced with several allegations of how his behavior was alleged to have been
contemptuous 1) a failure to arrive exactly at 9 am on 2/25/2014; 2) a failure to
return to court at 1:15 pm on 2/25/2014, 3) a failure to appear in court at the
3/13/2014 show cause hearing and 4) and alleged false statements in the Response
to Courts Order to Show Cause. (CR 1:19-21). If the allegations would have been
proven to be true, the Court could have elected to run the sentences consecutively
and Graham would have been exposed to a sentence longer than 6 months. As a
result the Court was wrong when it failed to inform and allow Graham to exercise
his right to have a jury trial. Instead the trial court scheduled the case to be heard
before Judge Shaver, (CR Supplement 1:7). A party facing incarceration for
criminal contempt must be notified of the right to a jury trial if the contemnor was
subject to “serious” punishment. Ex parte Sproull, 815 S.W.2d 250, 250
(Tex.1991).
d. This case was illegally transferred to be heard by an administrative law judge when there had been no contempt finding by the trial court
55. The trial court illegally referred the case against Graham to an administrative
law judge without following protocol for such transfer. In order to invoke the
mandatory requirement for a trial court to refer contempt proceedings to the
presiding judge of the administrative region in which the alleged contempt took
place the following must take place 1) the offended court must enter a finding of PETITION FOR WRIT OF HABEAS CORPUS, APPELLATE BRIEF, AND MOTION TO STAY JUDGMENT
contempt against an officer of the court and 2) the officer of the court must file a
proper motion in the offended court, Tex. Gov’t Code Sec. 21.002(d). There was
no show cause hearing that was conducted on 3/13/2014; no order of contempt was
ever entered finding Graham guilty of contempt by the trial court. (CR Supplement
1:21) Yet the court still referred the case to be heard by administrative judge
Douglas Shaver. (CR Supplement 1:7). The illegal transfer violated the Tex.
Gov’t Code Sec. 21.002(d) and Graham’s due process rights and therefore
Shaver’s contempt order must be reversed.
e. The $5,000 cash appeal bond and punishment were not supported by any evidence in the record
56. There was no evidence to support such a high bail amount; Graham should
have been afforded a personal recognizance bond. The Code of Criminal
Procedure requires that bail be set sufficiently high to ensure the defendant’s
appearance, but not so high as to be an instrument of oppression Tex. Code Crim.
Proc. Art. 17.15(1), (2); Ex parte McDonald, 852 S.W.2d 730, 735 (Tex. App., San
Antonio 1993). In setting this amount, the official should consider the nature of
the offense and the circumstances under which it was committed, Tex. Code Crim.
Proc. Art. 17.15(3); The risk of flight must also be evaluated in light of reasonable
conditions of bond that diminish any risk of flight. Ex parte Durst, 148 S.W.3d
496, 499 (Tex. App., Houston [14th Dist.] 2004, pet. ref’d); The future safety of PETITION FOR WRIT OF HABEAS CORPUS, APPELLATE BRIEF, AND MOTION TO STAY JUDGMENT
the victim of the alleged offense and the community must also be considered in
setting the bail amount Tex. Code Crim. Proc. (5). The official setting bail may
consider any criminal record the defendant may have, see Ex parte Thompson, 508
S.W.2d 624, 625 (Tex. Crim. App. 1974). The defendant’s ability to make bail is
another factor to be considered in setting the amount Tex. Code Crim. Proc. Art.
17.15(4). None of these factors were considered by Judge Shaver in setting the
$5,000 cash bond in this case. (RR 2:73 l. 11-25); (RR 2:72 l.1-7). A $5,000 cash
bond for alleged tardiness to court by Graham is completely disproportionate to the
alleged offense. (CR Supplement 1:15). There was no evidence presented that
Graham was a flight risk. There was no identifiable “victim” of the alleged offense
and there was certainly no evidence that there would be any possible future harm
to an alleged “victim”. Graham does not have, nor is there any evidence that
Graham has any prior criminal history. Furthermore, the Court did not take into
consideration Graham’s ability to make bail. When there is an accusation of
contempt against an officer of the court, the officer of the court is entitled to a
personal recognizance bond. Tex. Gov’t Code Sec. 21.002(d). There was no
evidence elicited that should have changed that requirement during the appeal of
this case. The Court’s appeal bond setting in this case was comparable to Graham
being charged with an aggravated felony.
PETITION FOR WRIT OF HABEAS CORPUS, APPELLATE BRIEF, AND MOTION TO STAY JUDGMENT
57. Moreover, punishment of 15 days assessed in this case was draconian,
considering that Movant is an officer of the court and has other obligations in other
courts. The Court could have and should have and could have considered other
alternatives to confinement, such as a fine, community service, house arrest,
reporting to confinement on weekends, or work release to name a few. Such a high
bail amount and such disproportionate punishment assessed by the trial court
violated Graham’s due process rights.
f. When it reset the case to 1:15pm, the Court did not specify that failure to comply for any reason would be grounds for contempt
58. The Court’s instruction does not provide notice that the failure to arrive at
1:15 pm after the recess would result in contempt. The order must provide the
person with specific and definite notice of the acts the person must or must not
perform in order to avoid being held in contempt, Lee v. State, 799 S.W.2d 750,
752-753 (Tex. Crim. App. 1990). The trial court simply said that the case would
be reset to 1:15 pm (RR 3:63 l. 9). The Court gave no admonishment that a failure
to comply for any reason would be grounds for contempt, thus a contempt finding
against Graham was wrong here.
g. Graham’s actions did not interfere with the administration of justice nor were they intentionally disrespectful to the Court.
PETITION FOR WRIT OF HABEAS CORPUS, APPELLATE BRIEF, AND MOTION TO STAY JUDGMENT
59. Graham’s actions did not obstruct the administration of justice nor were they
intentionally disrespectful. Criminal contempt usually results from doing an act
that the court has prohibited. This may be an act that obstructs the administration
of justice or tends to bring the court into disrespect Ex parte Krupps, 712 S.W.2d
144, 149 (Tex. Crim. App. 1986), cert. denied, 479 U.S. 1102 (1987). The essence
of contemptuous conduct is that it obstructs or tends to obstruct the proper
administration of justice Ex parte Jacobs, 664 S.W.2d 360, 364 (Tex. Crim. App.
1984). However, courts are expected to guard against confusing acts that offend
their sensibilities with acts that are actually disrespectful or that obstruct the
administration of justice, see Brown v. United States, 356 U.S. 148, 153, 78 S. Ct.
622, 2 L. Ed. 2d 589 (1958)]. The act itself must be shown to be intentionally
disrespectful; whether the statement offended the court is not the test. Contempt is
not to be presumed; on the contrary, it is presumed not to exist Ex parte Taylor,
807 S.W.2d 746, 748 (Tex. Crim. App. 1991). Therefore, the fact that conduct may
be irritating or exasperating does not necessarily render it contemptuous see Ex
parte Pink, 746 S.W.2d 758, 762 (Tex. Crim. App. 1988). However, improper
actions by counsel should only be considered contemptuous if they actually
interfere with the administration of justice, see Ex parte Curtis, 568 S.W.2d 363,
366–367 (Tex. Crim. App. 1978)—attorney’s remarks concerning judicial bias not
disruptive. PETITION FOR WRIT OF HABEAS CORPUS, APPELLATE BRIEF, AND MOTION TO STAY JUDGMENT
60. For there to be contempt there need be an intentional or willful action or
flagrant disregard of an order, Williams v. Estelle, 4566 F.Supp. 1376 (S.D. Tex.
1983); Ex Parte Taylor, 807 S.W.2d 756 (Tex. Crim. App. 1991). There is no
contempt where there is a good faith attempt at substantial compliance with a court
order; Rowe v. Moore, 756 S.W.2d 117 (Tex. App. Houston 1st Dist. 1988); Ex
Parte Sweeney, 628 S.W.2d 855 (Tex. App. Fort Worth 1982). If an attorney fails
to appear at trial but the facts show a good cause or excusable neglect for the
failure then there is no contempt that has been committed. Williams v. Estelle,
4566 F.Supp. 1376 (S.D. Tex. 1983); Ex Parte Taylor, 807 S.W.2d 756 (Tex. Crim.
App. 1991).
61. Graham, being one of the only African-American, out-of-town lawyers
practicing on the Court appointment list in Comal county had been singled out for
contempt action whereas other attorneys had not (RR 2:26 l.10-20; not a regular
practice of the court to make an attorney appearance shortly after 9 am the basis of
a show cause order, yet it was the basis of a show cause order against Graham).
Standing in the hall way for a brief period of time in order to complete a client
phone call shows the respect that Graham had for the Court for not wanting to
interrupt Court proceedings. There were no obstructions to the proper
administration of justice because client Chenoweth was already in the courtroom,
had already announced her appearance, and attorney Graham entered the PETITION FOR WRIT OF HABEAS CORPUS, APPELLATE BRIEF, AND MOTION TO STAY JUDGMENT
courtroom a few minutes later and indicated to the court that he was ready to
proceed with arraignment (RR 2: 47 l. 11-18). The case had been set for
arraignment and the necessary arraignment documents had been signed by the
client on 2/25/2014 and presented to the Court. (CR 1:15). The purpose of the
hearing for 2/25/2014 had been accomplished and there was no delay in the case.
Upon having completed the purposes of the hearing it was usually the Court’s
practice to reschedule the case for the entry of a plea or for a trial setting. Even
though the case was not scheduled for plea disposition on 2/25/2014 (CR
Supplement 1:20), Graham was prepared to dispose of the case. Graham brought it
to the Court’s attention numerous times that the case was ready to be disposed of
by entry of a plea all to no avail. (RR 3:48 l. 1-10); (RR 3:62 l. 18-22). Graham
waited hours attempting to resolve the case. (RR 2:44 l. 24-25; RR 2:45 l. 1-4).
During the lunch recess, Graham went to the jail in Bexar county to talk to a client
who had a trial setting in a few days and in the process was a few minutes late in
getting back because of traffic and because there was a delay in transporting the
client in the Bexar county jail. (RR 3:45 l. 5-14). In fact, Graham made a good
faith effort to comply with the Court’s order by coming back to the Court as
quickly as possible (RR 3:54 l. 4-8).
62. The traffic delay, the jail delay, the fact that the delay was only a few
minutes, and the fact that the purpose of the arraignment hearing had been PETITION FOR WRIT OF HABEAS CORPUS, APPELLATE BRIEF, AND MOTION TO STAY JUDGMENT
40 41 disobedience of the District Court’s order); Ex Parte Butler,372 S.W.2d 686 (Tex.
Crim. App. 1963)(no contempt where defense attorney was 10 to 20 minutes late
for docket call; the court noted that if the case had been set for trial that the
attorney’s absence would have only delayed it by a few minutes); Wise v.
Commonweath, 34 S.E. 453 (Va. 1899) (no contempt where the attorney was 2.5
hours late for trial and the court was waiting for him where he was involved in
another ongoing trial; the court determined that there was not the slightest
contempt of or disrespect to the lawful authority of the court that found him in
contempt). In Re Application of Mackay, 35 P.2d 385 (Cal. 1934)(no contempt
where attorney appeared 38 minutes late in returning to court after a noonday
continuance without justification in the absence of an express finding by the trial
court that the attorney had the ability to attend the court at the time designated);
Roselle v. State, P.2d 486 (Okla. Crim. App. 1973) (no contempt where the court
observed that a rule stating that attorneys must always be present when the case is
scheduled without allowing any flexibility was unrealistic, and where attorney
provided no reason for tardiness); In re Greene, 213 F.3d 223 (5th Cir., 2000)(no
finding of contempt where the attorney was 10-12 minutes late for arraignment and
offered a plausible reason for tardiness). Since there was a plausible explanation,
the delay was slight and caused because of circumstances beyond Graham’s
control, and there was no delay in the administration of justice because the PETITION FOR WRIT OF HABEAS CORPUS, APPELLATE BRIEF, AND MOTION TO STAY JUDGMENT
objectives of the arraignment hearing had been accomplished, there should be no
finding of contempt.
PRAYER
WHEREFORE PREMISES Graham seeks the following:
1) a stay of the contempt order while seeking habeas corpus relief and pursuing this appeal in accordance with Ex parte Camara, 628 S.W.2d 803, 804 (Tex. Crim. App. 1982); 2) that the Court grant Graham’s application for habeas corpus and reverse the trial court’s contempt finding 3) that the Court order the release and return of the $5,000 cash bond money immediately to Christopher Lauren Graham and that all bond obligations be discharged 4) and any other such relief in law or equity.
Respectfully submitted,
Lauren Graham & Associates PLLC
By:
CHRISTOPHER L. GRAHAM Texas Bar No. 24047549 PO Box 226265 Dallas, Texas 75222 clgraham@lgi-law.com
CERTIFICATE OF SERVICE
PETITION FOR WRIT OF HABEAS CORPUS, APPELLATE BRIEF, AND MOTION TO STAY JUDGMENT
This is to certify that on 6/8/2015, a true and correct copy of the above and foregoing document was served on the following parties:
Comal County District Attorney via fax: 830-608-2008 Judge Gary Steel via fax: 830-608-2030 Judge Doug Shaver: 830-608-2030
Christopher L. Graham
WORD COUNT CERTIFICATE
Pursuant to TEX. R. APP. P. 9.4, I hereby certify that this appellate brief contains 6720 words. This is a computer-generated document created in Microsoft Word. In making this certificate of compliance, I am relying on the word count provided by the software used to prepare the document.
PETITION FOR WRIT OF HABEAS CORPUS, APPELLATE BRIEF, AND MOTION TO STAY JUDGMENT
52 PETITION FOR WRIT OF HABEAS CORPUS, APPELLATE BRIEF, AND MOTION TO STAY JUDGMENT
55 1 2 58 63 5 6 7 8 9 10 89 12 13 14 15 16 17 18 19 114
20 21 22 127 Master Index April 8, 2014 7
1 STATE OF TEXAS 2 COUNTY OF COMAL
3 I, RICHARD E. ROBERTS, JR., Official Court Reporter in and 4 for the 274th District Court of Comal County, State of Texas, 5 do hereby certify that the above and foregoing contains a true 6 and correct transcription of all portions of evidence and 7 other proceedings requested in writing by counsel for the
8 parties to be included in this volume of the Reporter's Record 9 in the above-styled and numbered cause, all of which occurred 10 in open court or in chambers and were reported by me. 11 I further certify that this Reporter's Record of the
12 proceedings truly and correctly reflects the exhibits, if any, 13 offered by the respective parties. 14 WITNESS MY OFFICIAL HAND on this, the 26th day of January, 15 2015. 16
17 18 /s/ Richard E. Roberts, Jr. 19 _________________________________ 20 RICHARD E. ROBERTS, JR., CSR Texas CSR 5411 21 Official Court Reporter 274th District Court 22 P.O. Box 311905 New Braunfels, Texas 78131-1905 23 Expiration: 12/31/16
RICHARD E. ROBERTS, JR., CSR (830) 228-4634 133 6
1 what to look for real quick?
2 THE COURT: Sure.
3 MR. GRAHAM: I would also invoke the Rule at
4 this time.
5 THE COURT: All right. It's been invoked.
6 MR. PALMITIER: Actually, there will be -- one
7 is here, Your Honor, our bailiff, Nick.
8 (Bailiff placed under oath by the Court.)
9 THE COURT: The Rule has been invoked. That
10 means you can no longer discuss your testimony among other
11 witnesses. You can still talk to the lawyers for either side.
12 If you do that, you have to do it where no one else can hear
13 you and you'll have to remain outside.
14 THE BAILIFF: Yes, sir.
15 MR. PALMITIER: I don't know if the Court has
16 had time to go over the files, if you would like a brief
17 opening synopsis of what the testimony would be.
18 THE COURT: Yes.
19 MR. PALMITIER: Is that yes? You would like a
20 brief synopsis?
21 THE COURT: Yes.
22 MR. PALMITIER: At this time, Your Honor, I
23 would to ask the Court to take judicial notice of the two court
24 files in Chelsie Chenoweth and additionally Cynthia Browne.
25 THE COURT: I have done so.
ATTORNEYS' REPORTING SERVICE (512) 327-4650 134 7
1 MR. PALMITIER: Thank you, Your Honor. A quick
2 review of that is going to show, once looking at the record,
3 that on February 25th Chelsie Chenoweth was to be called for a
4 pretrial arraignment. And at about 9:00 o'clock the Court
5 started calling the docket. At 9:24 they got to
6 Ms. Chenoweth's announcement and Ms. Chenoweth, the defendant,
7 was present. However, defense counsel was not present.
8 At about 9:38 defense counsel it looked like was
9 here and that he'd be speaking with the DA's office.
10 The Court then recessed for an hour. And about
11 10:52 the defense counsel notified the Court he was ready to do
12 a plea in the case. And the Court notified defense counsel
13 that there were custody cases and a contested hearing that were
14 in front of his non-custody plea. So eventually he was
15 recessed to come back after lunch at 1:15. At 1:34 the Court,
16 going through the docket, noticed Mister -- Ms. Chenoweth was
17 present. Mr. Graham was still not present. And the Court shut
18 down at about 1:46. And Mr. Graham showed up around 2:00
19 o'clock that day.
20 So Ms. Chenoweth's case would not to able to be
21 taken up that day. It was going to have to be reset. And it
22 was reset to March 13th. And, additionally, at that point the
23 Court set a hearing for March 13 for a Show Cause as to why
24 defense counsel was late in the morning and late -- and didn't
25 show in the afternoon until after the Court had closed.
ATTORNEYS' REPORTING SERVICE (512) 327-4650 26 143 16
1 Q. What did the Court do at that point?
2 A. His response is, "Give him a call and prepare a show
3 cause."
4 Q. Now, you are aware that Mr. Graham did show up later
5 that morning?
6 A. He did show up later that morning, yes, sir.
7 Q. I refer you to your record at page 34. Can you
8 please tell the Court today what time Mr. Graham announced for
9 Ms. Chenoweth?
10 A. Yes. That would be 9:38 a.m.
11 Q. If you can tell from the record, what was Mr. Graham
12 and Ms. Chenoweth's case there set for that day?
13 A. I believe it was set for arraignment. Let me verify
14 that. Yes, that is correct.
15 Q. What did the Court let Mr. Graham know at that
16 moment when he announced?
17 A. Usually on first settings for arraignment the Court
18 advises counsel to either get a waiver of arraignment from
19 their client or he will arraign them. And that is what was
20 stated here on page 35. The Court says, "For arraignment. I
21 need you to say hello to the DA's office. If there is nothing
22 we can do today, then get me a waiver of arraignment or bring
23 your client up and let me arraign her."
24 Q. Okay. What did Mr. Graham respond?
25 A. "Sounds good. Thank you very much, Your Honor."
ATTORNEYS' REPORTING SERVICE (512) 327-4650 28 29 163 36
1 MR. GRAHAM: Yes, Your Honor.
2 THE COURT: You're free to go. Thank you for
3 having to come down.
4 Call your next.
5 MR. PALMITIER: State calls Nick Reininger.
6 (The witness entered the courtroom and was
7 previously sworn by the Court.)
8 NICK REININGER,
9 having been first duly sworn, testified as follows:
10 DIRECT EXAMINATION
11 BY MR. PALMITIER:
12 Q. Can you please tell us -- tell the record how you
13 are employed?
14 A. I'm employed by the Comal County District Court.
15 Q. And which court is that?
16 A. The 207th, 274th, the 433rd and the 22nd.
17 Q. How long have you been in that position?
18 A. Approximately three years.
19 Q. Do you remember what you were doing on February
20 25th? I'm sorry. March 13th.
21 A. Yes. I was working for Judge Gary Steel.
22 Q. March 13th and February 25th.
23 A. 274th District Court bailiff.
24 Q. And particularly on February 25th, did you remember
25 what was going on that day?
ATTORNEYS' REPORTING SERVICE (512) 327-4650 31 168 41
1 A. No.
2 Q. Were you otherwise ready to proceed to trial?
3 A. Yes.
4 Q. Do you feel your attorney was ready to proceed with
5 trial?
6 A. Yes.
7 Q. Had you all discussed it before?
8 A. Yes.
9 Q. Had not for him not being here, you would have been
10 ready to go to trial?
11 A. Yes.
12 Q. And were we able to do that that day?
13 A. No.
14 Q. Why is that?
15 A. I don't know why I was called for court that day
16 because I had my trial on March 31st. I was kind of confused
17 why I was now coming on March 31st.
18 Q. Okay. On that day that you were in court, did you
19 ever hear from your attorney?
20 A. No.
21 Q. Okay. Or anybody from his office on that day?
22 A. No.
23 Q. Okay. What about the day of trial? Did you hear
24 from your attorney?
25 A. Yes.
ATTORNEYS' REPORTING SERVICE (512) 327-4650 174 47
1 the Show Cause date and that was again denied.
2 Now -- so I think that -- based on the
3 circumstances, I think that a Show Cause or at least a contempt
4 finding in this case is inappropriate. It's not a situation
5 where there was any kind of intentional disregard for Court
6 orders.
7 THE COURT: Cross-examine?
8 CROSS EXAMINATION
9 BY MR. PALMITIER:
10 Q. What time did you show up on February 25th?
11 A. Shortly after 9:00 o'clock.
12 Q. Exact time?
13 A. I don't know the exact time.
14 Q. Were you there for the docket call when it started?
15 A. I didn't hear her name called. I didn't hear Ms.
16 Chenoweth's name called. That's why I had to approach the
17 bench in order to make sure that, you know, I was registered as
18 being here.
19 Q. The reason you didn't hear her name called -- is
20 that because you weren't there?
21 A. Because I was out in the hall.
22 Q. Did you let Ms. Chenoweth know that you were out in
23 the hall?
24 A. No.
25 Q. Why were you out in the hall?
ATTORNEYS' REPORTING SERVICE (512) 327-4650 34 177 50
1 Someone sent it to me via e-mail.
2 Q. Have you had a chance to review it?
3 A. I reviewed it, more or less.
4 Q. Okay. Going over what the Court had on its docket
5 that day, there were custody hearings it had to take up and the
6 contested hearing?
7 A. Correct.
8 Q. And that was it. All of the cases left in the
9 afternoon were just you and two other people.
10 A. Perhaps there were other cases that were actually --
11 perhaps there were cases that were resolved. I'm just going by
12 what the Court said. In other words, they were contested
13 hearings. That's what I heard before I left to lunch.
14 Q. But if you read the record and what the Court said
15 that day, they had a contested hearing they were taking up
16 before lunch. There were no contested hearings taken up after
17 lunch.
18 A. I don't believe that I heard before or after. I
19 heard contested hearing and that was going to be taken up
20 before my case is what -- I didn't know when it was going to be
21 taken up. I would assume that it would have been taken up
22 after lunch. That's what I assumed.
23 Q. But after reading the record and hearing it in court
24 today, there was no contested hearing that afternoon, was
25 there?
ATTORNEYS' REPORTING SERVICE (512) 327-4650 184 57
1 A. Because I had prior hearings that were scheduled in
2 Williamson County on that day. And I filed a Motion for
3 Continuance, you know, after I got the Show Cause via fax.
4 Q. When did you file your Motion for Continuance?
5 A. A few days after it was faxed to me, that the Show
6 Cause was faxed to me. I don't remember. A day or two after.
7 I don't know off the top of my head.
8 Q. Would you like to see a copy of the Court's record?
9 A. Sure.
10 Q. Do you remember what day the notice to be here was
11 sent to you?
12 A. Maybe a day or two after the 25th of February.
13 Q. So February 25th?
14 A. A day or two after that. I remember it being that
15 long.
16 Q. February 27th? Okay. That's when you were given
17 notice to be here for Ms. Chenoweth and your Show Cause
18 hearing?
19 A. Correct. It was sent to me via -- I think it was
20 sent by fax.
21 Q. And your testimony today is that you sent in the
22 Motion for Continuance shortly thereafter?
23 A. Right. I don't know exactly when it was, but I did
24 send in a Motion for Continuance as well as my response to the
25 Court's order to show cause.
ATTORNEYS' REPORTING SERVICE (512) 327-4650 37 38 190 63
1 here because of an accident in downtown Austin, Mr. James Lacy.
2 Q. So would you say due to your tardiness, unable to be
3 in court, we were not able to handle Ms. Chenoweth's case in an
4 expeditious manner?
5 A. I would say due to the breaks and the Court's
6 tardiness, the plea was unable to be handled. The plea could
7 have been handled on the 25th of February.
8 Q. So it's the Court's fault?
9 A. Well, all I know is the plea paperwork was done in
10 the morning time and, you know, there had to be a wait until
11 1:15, when, you know, the court reporter indicated that
12 basically pleas just take five minutes in order to get done.
13 Q. And Ms. Cynthia Browne's case.
14 A. Uh-huh.
15 Q. What was it set for on the Thursday prior to trial?
16 A. My understanding it was actually set for -- the
17 standard protocol here, my understanding now, is that the
18 Thursday prior to trial there is some kind of an announcement.
19 However, I called about Cynthia Browne's case. And, No. 1, it
20 was set so quickly for trial after her prior court date, which
21 was kind of strange I thought, and also because of how young
22 her case was it was far down the list. The probability of it
23 going was almost nonexistent. In addition to that, I was told
24 by Mr. Steve Thomas, one of the court coordinators here, that
25 there was a capital murder that was going and so therefore
ATTORNEYS' REPORTING SERVICE (512) 327-4650 40 41 42 201 44 45 217 Non-Jury Docket February 25, 2014 15
1 (Discussion off the record.) 2 THE COURT: So we will reset Weir for two weeks.
3 Uncontested.
4 2013-301, the same thing. Reset two weeks, 5 uncontested.
6 Plea docket. These three matters need to -- or 7 actually it's one matter that needs to be resolved today or it
8 goes to the jury docket.
9 2013-346, 347, 348, Abelardo Rodriguez, Jr. 10 MR. MILLAN: Your Honor, I'm going to speak to
11 my client. I'm pretty sure that's going to go to the trial
12 docket, but I'm going to try one last effort to try to come to 13 a resolution.
14 THE COURT: I'll mark you as conferring. Thank 15 you.
16 2012 -- pretrial docket. I'm talking mostly to
17 defense counsel here. If you want to go to the plea docket, 18 which is the last non-jury setting before going to the jury
19 docket, just let me know and it will happen. If you want to
20 go to the jury docket, let me know and it will happen. 21 If you want to stay on the pretrial docket,
22 you're going to need to approach, even if the D.A. is in 23 agreement, and let me know why the case is not moving forward.
24 2012-181, Kirk Slaughter.
25 MR. FANUCCHI: Good morning, Judge. He's
RICHARD E. ROBERTS, JR., CSR (830) 228-4634 47 222 Non-Jury Docket February 25, 2014 20
1 acceptable to the State? 2 MS. KELLY: Yes, Your Honor.
3 THE COURT: After April 15th?
4 MR. CAMPOS: Yes, sir. 5 THE COURT: The first setting after April 15th
6 for pretrial on 2013-435. 7 MR. CAMPOS: May I be excused?
8 THE COURT: You may. Thank you.
9 2013-575, Jessica Lindig. 10 MS. ANCIRA: Your Honor, I got a phone call from
11 my client this morning saying that she didn't have
12 transportation to court. 13 THE COURT: Call her name three times, issue a
14 warrant, forfeit her bond, and get her transportation. 15 THE BAILIFF: Yes, Your Honor.
16 MS. ANCIRA: May I be excused?
17 THE COURT: You may. You might want to let her 18 know that we've issued a warrant for her arrest. That may
19 help her find transportation.
20 MS. ANCIRA: I told her to expect that. 21 THE COURT: Okay.
22 MS. ANCIRA: But I will call her and let her 23 know.
24 THE COURT: This is the arraignment docket. At
25 the very least, defense counsel, I need to arraign your
RICHARD E. ROBERTS, JR., CSR (830) 228-4634 49 233 Non-Jury Docket February 25, 2014 31
1 THE COURT: Don't talk about your case. 2 THE DEFENDANT: No, everything is fine, sir. I
3 just need counsel. That's all I need.
4 THE COURT: Reset. Order to retain, 30 days. 5 Read it carefully before you sign it. If you come in again
6 without counsel, you're going to have to come up here and tell 7 me again why your new job isn't paying you or whatever that
8 is. You've told me all you need is $500. You've got 30 days,
9 which should be two paychecks. You should be able to come up 10 with $500 to retain your own counsel.
11 THE DEFENDANT: Yes, Your Honor.
12 THE COURT: Step over to the side. Make sure 13 you take a copy with you after you've read it and signed it.
14 THE DEFENDANT: Yes, sir. 15 THE COURT: Motion to Substitute: 2012-486,
16 Humberto Ibarra.
17 May I see that file, please. 2012-486. 18 THE CLERK: (Complies.)
19 THE COURT: Is your client here?
20 MR. ACEVEDO: No, Your Honor. 21 THE COURT: Did you tell him to be here?
22 MR. ACEVEDO: I just called him, Your Honor, and 23 apparently he was told that he had a setting like in March:
24 March 17th and March 11th. He's on full house arrest, Your
25 Honor. And what I'm thinking, Your Honor, is that they
RICHARD E. ROBERTS, JR., CSR (830) 228-4634 51 239 Non-Jury Docket February 25, 2014 37
1 get a job, you're going to be back in here and then back in 2 the state jail facility.
3 And then my second comment is to the probation
4 department. I want you to get her some help on getting child 5 support from the father of her children.
6 PROBATION: Okay. 7 THE COURT: It says two children. You have two
8 or one child?
9 THE DEFENDANT: One. 10 MS. JONES: She has one and she's pregnant.
11 THE COURT: Okay. It's both children. And
12 that's going to be a condition of probation is that you 13 actively seek child support from the fathers of these
14 children. If you fail to do that and give them a pass, you go 15 to jail. Do you understand?
16 THE DEFENDANT: Yes, sir.
17 THE COURT: My staff is very good at getting the 18 attorney general's attention on these kind of the cases.
19 So I find you guilty and sentence you to two
20 years in a state jail facility, probated for four years; 21 $1,500 fine; $140 in restitution; court costs; Crime Stopper's
22 fee to be paid as soon as she can, accelerated; 200 hours of 23 community service restitution; and follow all of the
24 recommendations in the PSI.
25 MS. JONES: And Judge, she's a resident of
RICHARD E. ROBERTS, JR., CSR (830) 228-4634 53 54 55 56 57 253 Non-Jury Docket February 25, 2014 51
1 THE COURT: True or not true? 2 THE DEFENDANT: All true, sir.
3 THE COURT: Does the State have a recommendation
4 in exchange for the plea of true? 5 MR. McCRARY: Basically that he get 18 months
6 state jail and a $500 fine. 7 THE COURT: Was that the original fine?
8 MR. McCRARY: That's the original sentence,
9 quite honestly. I'm not making him any kind of deal other 10 than it won't be stacked.
11 THE COURT: Okay. Then I do hereby revoke your
12 probation and sentence you to 18 months in a state jail 13 facility and give you credit for time served as allowed under
14 the rules and laws of this state. 15 THE DEFENDANT: Yes, sir.
16 THE COURT: Any and all unpaid fines, fees,
17 restitution, et cetera, will be remain due and owing. 18 Good luck, sir.
19 Thank you, Counsel.
20 THE DEFENDANT: Remain due and owing, sir? 21 Remain -- I'm confused, sir. I don't want to be confused,
22 sir. 23 THE COURT: When you originally were found
24 guilty --
25 THE DEFENDANT: Yes, sir.
RICHARD E. ROBERTS, JR., CSR (830) 228-4634 259 Non-Jury Docket February 25, 2014 57
1 other one has a different value. 2 The benefit to me if they're basically
3 alternative means of committing the same offense is I get to
4 go at him two ways at once. On the other hand if he's right 5 and he's entitled to sever them and they're separate offenses,
6 I get to try him twice and try to get 20 years stacked on him 7 for two different offenses. So that's why I'm not
8 particularly offended by either idea.
9 But at the end of the day the question is what 10 the law requires. And this case out of Amarillo specifically
11 addresses that if they're not separate offenses, he's not
12 entitled to sever. It cites back to a Court of Criminal 13 Appeals case. And then these cases, Your Honor, all out of --
14 well, there's one out of El Paso and two or three out of the 15 Court of Criminal Appeals that all talk about what the
16 gravamen of theft is. You might want to review those.
17 My main concern, whichever way you go, is that 18 it's right. Because if he's right and they're severed and
19 he's taking this position and I try him on one, even if he
20 wins and I get a not guilty I get to turn around and try him 21 on the second if they're separate offenses. So --
22 MR. COLLINS: And, Your Honor, we also have the 23 issue too that for Count 2 you have to show the two or more
24 prior offenses, which then we're going to run into an issue as
25 far as 404(b) of the Rules of Evidence that is character
RICHARD E. ROBERTS, JR., CSR (830) 228-4634 261 Non-Jury Docket February 25, 2014 59
1 he's going to take this position, I'm telling him straight up 2 he's going to get tried twice. You can't have it both ways.
3 You can't say they're separate offenses and make me pick one
4 and then me not get my shot at the second one. 5 THE COURT: I understand.
6 And you understand that, too, Counsel? 7 MR. COLLINS: I do, Your Honor. And we're
8 looking at, too, the value as one thing and then we're going
9 to try a second one and now we're coming back and saying the 10 value is separate. It's one or the other. Again, we're back
11 to: What is it? What was stolen and what is the value?
12 THE COURT: Well, let me read the cases. 13 Obviously I want to be right, too. I don't want to try it
14 four times. 15 MR. McCRARY: There is a Court of Criminal
16 Appeals' case, in particular. And it's not amongst those I
17 gave you. But it's fairly recent. And what they did is they 18 indicted a guy for burglary of a habitation and they alleged
19 with intent to commit a felony offense like sexual assault. I
20 think while in the house the guy also took something, so they 21 also did a theft. One is a first degree felony; and, as you
22 know, the other is a second degree. He was tried on both and 23 convicted on both.
24 He went to the Court of Criminal Appeals and the
25 State's argument was different elements: One is you commit
RICHARD E. ROBERTS, JR., CSR (830) 228-4634 61 62 63 277 Non-Jury Docket February 25, 2014 75
3 I, RICHARD E. ROBERTS, JR., Official Court Reporter in and
4 for the 274th District Court of Comal County, State of Texas, 5 do hereby certify that the above and foregoing contains a true
6 and correct transcription of all portions of evidence and 7 other proceedings requested in writing by counsel for the
8 parties to be included in this volume of the Reporter's Record
9 in the above-styled and numbered cause, all of which occurred 10 in open court or in chambers and were reported by me.
11 I further certify that this Reporter's Record of the
12 proceedings truly and correctly reflects the exhibits, if any, 13 offered by the respective parties.
14 WITNESS MY OFFICIAL HAND on this, the 31st day of March, 15 2014.
17 18
19 /s/ Richard E. Roberts, Jr.
20 ______________________________________ RICHARD E. ROBERTS, JR., CSR 21 Texas CSR 5411 Official Court Reporter 22 274th District Court P.O. Box 311905 23 New Braunfels, Texas 78131-1905 Expiration: 12/31/14 24
RICHARD E. ROBERTS, JR., CSR (830) 228-4634 65 66 279 Non-Jury Docket March 13, 2014 2
1 VOLUME 2 2 Non-Jury Docket
3 March 13, 2014
4 PAGE VOL. 5 Excerpts of CR2013-366 ............................3 2
6 Reporter's Certificate ...........................10 2 7
9 10
12 13
14 15
20 21
22 23
RICHARD E. ROBERTS, JR., CSR (830) 228-4634 68 69 TRANSCRIPT COVER SHEET 2nd SUPPLEMENTAL CLERKS RECORD VOL I OF I 1
INDEX 2
CAPTION 3
APPLICATION FOR WRIT OF HABEAS CORPUS (FILED MAR 19, 2015) 4-8
LETTER FROM CHRISTOPHER L. GRAHAM (FILED APR 27, 2015) 9
MEMO FROM SANDRA MAGGIANI (FILED MAY 13, 2015) 10
DESIGNATION OF MATTERS IN CLERKS RECORD (FILED MAY 19, 2015) 11
BILL OF COST 12
CLERKS CERTIFICATE 13 72 73 74 75 76 77 78 79 80 81 82 83 84 85 86 87 88 89 90 91 92 93 94 95
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26 121 Master Index April 8, 2014 1
1 REPORTER'S RECORD VOLUME 1 OF 3 VOLUMES 2 TRIAL COURT CAUSE NO. CR2013-366
3 IN RE: ) IN THE DISTRICT COURT ) 4 ) 274TH JUDICIAL DISTRICT ) 5 CRISTOPHER GRAHAM ) COMAL COUNTY, TEXAS
6 7
8 _____________________________________________
9 MASTER INDEX _____________________________________________ 10
20 21 On the 8th day of April, 2014, the following proceedings
22 came on to be held in the above-titled and numbered cause 23 before the Honorable Lloyd Douglas Shaver, Judge Presiding,
24 held in New Braunfels, Comal County, Texas.
25 Proceedings reported by computerized stenotype machine.
RICHARD E. ROBERTS, JR., CSR (830) 228-4634 122 Master Index April 8, 2014 2
1 APPEARANCES 2 MR. DANIEL A. PALMITIER SBOT NO. 24062934 3 Comal County DA's Office 150 N. Seguin Street 4 Suite 307 New Braunfels, Texas 78130 5 Telephone: (830)221-1300 Attorney for State 6 MR. CHRISTOPHER L. GRAHAM 7 SBOT NO. 24047549 Lauren Graham & Associates 8 700 N. St. Mary's Street Suite 1400 9 San Antonio, Texas 78205 Telephone: (469)605-6846 10 Attorney for Respondent
RICHARD E. ROBERTS, JR., CSR (830) 228-4634 123 Master Index April 8, 2014 3
1 VOLUME 1 2 MASTER INDEX
3 April 8, 2014
4 5 VOLUME 2
6 SHOW CAUSE HEARING 7 April 8, 2014
8 PAGE VOL.
9 WITNESSES APPEARING ON BEHALF OF THE STATE: 10 RICK ROBERTS
11 Direct Examination by Mr. Palmitier.................10 2 Cross Examination by Mr. Graham.....................24 2 12 Redirect Examination by Mr. Palmitier...............28 2 Recross Examination by Mr. Graham...................28 2 13
14 CHELSIE CHENOWETH 15 Direct Examination by Mr. Palmitier.................29 2 Cross Examination by Mr. Graham.....................32 2 16
17 NICK REININGER 18 Direct Examination by Mr. Palmitier.................36 2
19 CYNTHIA BROWNE
20 Direct Examination by Mr. Palmitier.................39 2 Cross Examination by Mr. Graham.....................42 2 21
22 WITNESS ON BEHALF OF RESPONDENT: 23 CHRISTOPHER GRAHAM
24 Direct Testimony of Mr. Graham......................43 2 Cross Examination by Mr. Palmitier..................47 2 25
RICHARD E. ROBERTS, JR., CSR (830) 228-4634 124 Master Index April 8, 2014 4
1 VOLUME 3 2 EXHIBIT VOLUME
4 5
RICHARD E. ROBERTS, JR., CSR (830) 228-4634 125 Master Index April 8, 2014 5
1 ALPHABETICAL INDEX OF WITNESSES 2 Direct Cross V. Dire
3 Brown, Cynthia 39 v2 42 v2 Chenoweth, Chelsie 29 v2 32 v2 4 Graham, Christopher 43 v2 47 v2 Reininger, Nick 36 v2 5 Roberts, Rick 10 v2 24 v2 28 v2 28 v2 6 7
RICHARD E. ROBERTS, JR., CSR (830) 228-4634 126 Master Index April 8, 2014 6
1 EXHIBITS 2 EXHIBIT NO. DESCRIPTION OFFERED ADMITTED
3 State's 1 Reporter's Records 13 13 February 25/March 13, 4 2014 5
RICHARD E. ROBERTS, JR., CSR (830) 228-4634 127 Master Index April 8, 2014 7
3 I, RICHARD E. ROBERTS, JR., Official Court Reporter in and 4 for the 274th District Court of Comal County, State of Texas, 5 do hereby certify that the above and foregoing contains a true 6 and correct transcription of all portions of evidence and 7 other proceedings requested in writing by counsel for the
8 parties to be included in this volume of the Reporter's Record 9 in the above-styled and numbered cause, all of which occurred 10 in open court or in chambers and were reported by me. 11 I further certify that this Reporter's Record of the
12 proceedings truly and correctly reflects the exhibits, if any, 13 offered by the respective parties. 14 WITNESS MY OFFICIAL HAND on this, the 26th day of January, 15 2015. 16
17 18 /s/ Richard E. Roberts, Jr. 19 _________________________________ 20 RICHARD E. ROBERTS, JR., CSR Texas CSR 5411 21 Official Court Reporter 274th District Court 22 P.O. Box 311905 New Braunfels, Texas 78131-1905 23 Expiration: 12/31/16
RICHARD E. ROBERTS, JR., CSR (830) 228-4634 128 1
1 CAUSE NOS. CR2013-519, CR2013-366 VOLUME 2 OF 3 VOLUMES 2 IN RE: ) IN THE DISTRICT COURT 3 ) ) 274TH JUDICIAL DISTRICT 4 ) CHRISTOPHER GRAHAM ) COMAL COUNTY, TEXAS 5
10 * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * 11 SHOW CAUSE HEARING 12 April 8, 2014
13 * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *
15 On the 8th day of April, 2014, the following
16 hearing came on to be heard outside the presence of a jury in
17 the above-styled and numbered cause before the Honorable Lloyd
18 Douglas Shaver, Visiting Judge, held in New Braunfels, Comal
19 County, Texas.
20 Proceedings reported by Computerized Stenotype
21 Machine; Reporter's Record produced by Computer-Assisted
22 Transcription.
ATTORNEYS' REPORTING SERVICE (512) 327-4650 129 2
1 APPEARANCES
2 FOR CHRISTOPHER L. GRAHAM:
3 CHRISTOPHER L. GRAHAM LAUREN GRAHAM AND ASSOCIATES, PLLC 4 700 N. St. Mary's Street, Suite 1400 San Antonio, Texas 78205 5
6 FOR THE STATE:
7 DANIEL PALMITIER Assistant District Attorney 8 150 N. Seguin, Suite 307 New Braunfels, Texas 78130 9 830.608.2008
ATTORNEYS' REPORTING SERVICE (512) 327-4650 130 3
1 INDEX
2 PAGE WITNESSES APPEARING ON BEHALF OF THE STATE: 3 RICK ROBERTS 4 Direct Examination by Mr. Palmitier ....................10 5 Cross Examination by Mr. Graham ........................24 Redirect Examination by Mr. Palmitier ..................28 6 Recross Examination by Mr. Graham ......................28
7 CHELSIE CHENOWETH
8 Direct Examination by Mr. Palmitier ....................29 Cross Examination by Mr. Graham ........................32 9 NICK REININGER 10 Direct Examination by Mr. Palmitier ....................36 11 CYNTHIA BROWNE 12 Direct Examination by Mr. Palmitier ....................39 13 Cross Examination by Mr. Graham ........................42
14 WITNESS OF BEHALF OF CHRISTOPHER GRAHAM: 15 CHRISTOPHER GRAHAM 16 Direct Testimony by Mr. Graham .........................43 17 Cross Examination by Mr. Palmitier .....................47
ATTORNEYS' REPORTING SERVICE (512) 327-4650 131 4
1 EXHIBITS
2 EXHIBIT NO. DESCRIPTION MARKED OFFERED ADMITTED
3 State's 1 Reporter's Record 13 13 13 Feb. 25/March 13, 2014 4
ATTORNEYS' REPORTING SERVICE (512) 327-4650 132 5
1 THE COURT: All right. We have two Show Cause
2 orders, No. CR2013-366, In Re Christopher Graham and
3 CR2013-519, In Re Christopher Graham.
4 Both sides ready to appear?
5 MR. PALMITIER: Yes, Your Honor.
6 MR. GRAHAM: Your Honor, I made a request last
7 time for a court-appointed attorney. I just want to make sure
8 that the Court has denied that request for purposes of the
9 record.
10 THE COURT: All right. Let the record reflect
11 it has been denied.
12 Are you ready to proceed?
13 MR. PALMITIER: Yes, Your Honor.
14 The State calls its first witness, court
15 reporter Rick Roberts.
16 (Witness placed under oath by the Court)
17 THE COURT: Have a seat.
18 Are there any other witnesses in the courtroom
19 that are going to testify?
20 MR. PALMITIER: There will be one more showing
21 up in the next --
22 THE COURT: Okay. Well, let me know because
23 they are going to be under the Rule. They will have to wait
24 outside.
25 MR. PALMITIER: Can I let my investigator know
ATTORNEYS' REPORTING SERVICE (512) 327-4650 133 6
10 means you can no longer discuss your testimony among other
11 witnesses. You can still talk to the lawyers for either side.
12 If you do that, you have to do it where no one else can hear
23 would to ask the Court to take judicial notice of the two court
24 files in Chelsie Chenoweth and additionally Cynthia Browne.
2 review of that is going to show, once looking at the record,
3 that on February 25th Chelsie Chenoweth was to be called for a
4 pretrial arraignment. And at about 9:00 o'clock the Court
6 Ms. Chenoweth's announcement and Ms. Chenoweth, the defendant,
9 here and that he'd be speaking with the DA's office.
11 10:52 the defense counsel notified the Court he was ready to do
12 a plea in the case. And the Court notified defense counsel
13 that there were custody cases and a contested hearing that were
15 recessed to come back after lunch at 1:15. At 1:34 the Court,
16 going through the docket, noticed Mister -- Ms. Chenoweth was
17 present. Mr. Graham was still not present. And the Court shut
21 taken up that day. It was going to have to be reset. And it
22 was reset to March 13th. And, additionally, at that point the
23 Court set a hearing for March 13 for a Show Cause as to why
24 defense counsel was late in the morning and late -- and didn't
ATTORNEYS' REPORTING SERVICE (512) 327-4650 135 8
1 March 13th, again at 9:38 in the morning,
2 Ms. Chenoweth's case was called. And Mr. Graham was not
3 present. The Court was notified that Mr. Graham would be
4 sending someone else in his place. That person did not show
5 up. And Ms. Chenoweth, when questioned, had not spoken to Mr.
6 Graham either. On that day the defense counsel or anybody from
7 his office wholly failed to show.
8 That is what the evidence will show after
9 testimony today, Your Honor.
10 THE COURT: All right. You may proceed.
11 MR. GRAHAM: Your Honor, am I permitted to give
12 an opening or --
13 THE COURT: Sure. Go ahead.
14 MR. GRAHAM: Your Honor, the fact of the matter
15 is this was a case that was -- I attempted to set on the 13th
16 of February, 2014, and called the Court in order to set Ms.
17 Chenoweth's case. It was supposed to be set on that day
18 because I had other cases that were set on the same day.
19 However, when I got here on the 13th of February, I was told by
20 the Court that, no, Ms. Chenoweth's case was not on the Court
21 docket. The fact of the matter is insofar as when her
22 subsequent court case was set on the 25th of February I didn't
23 hear her name called. You know, I wanted to verify with the
24 Court, you know, basically that her case had been called. At
25 that point I said, "Look, you know, has Ms. Chenoweth's case
ATTORNEYS' REPORTING SERVICE (512) 327-4650 136 9
1 been called?" And I guess some kind of notation was made in
2 the Court docket that, you know, I was here and was ready to
3 proceed.
4 Shortly thereafter the case was set up for plea
5 and was ready to go. The plea paperwork in Ms. Chenoweth's
6 case had been signed and was ready. And for whatever reason,
7 the Court took a lengthy recess of an hour or longer.
8 Ms. Chenoweth's case was not gotten to after several attempts.
9 I had to notify the Court again twice that "Hey, look, we have
10 got a plea that's ready to go here."
11 And so the Court then said that the case was
12 going to be reset until 1:15 that day. So, in other words, we
13 have got a situation here where I have got a plea that's ready
14 to go and I'm waiting to get it done for hours and hours. And
15 I'm a solo practitioner. I had another consultation in San
16 Antonio, thought that I could get it done and come back. I was
17 a few minutes late. The Court indicated to me that there were
18 other contested matters that were going to be taken up prior to
19 the plea anyway. And so I got here and, lo and behold, the
20 other cases had been dismissed. My client was gone. And
21 that's pretty much what happened. It wasn't a situation about
22 any kind of intentional disrespect to the Court. It was just a
23 matter of trying to get back from San Antonio here between that
24 lunch period when the Court recalled the case at 1:15.
25 So, as a result of that, surely it's not a
ATTORNEYS' REPORTING SERVICE (512) 327-4650 137 10
1 situation where there is any obstruction of the Court's, you
2 know, attempts at resolving cases. By all means, I was trying
3 to get that done. It was just a scheduling issue with the jail
4 down in San Antonio. As a result of that, I don't think that
5 any kind of contempt should be issued or actually held in
6 effect here today.
7 Thank you.
8 THE COURT: You may proceed.
9 RICK ROBERTS,
10 having been first duly sworn, testified as follows:
11 DIRECT EXAMINATION
12 BY MR. PALMITIER:
13 Q. Please state your name for the record.
14 A. Rick Roberts.
15 Q. And how are you employed, Mr. Roberts?
16 A. I am the official reporter for the 274th Judicial
17 District Court.
18 Q. How long have you been in that position for?
19 A. January 1st of this year was 15 years.
20 Q. Who is the judge for that particular court?
21 A. District Judge Gary Steel.
22 Q. How long have you worked with him for?
23 A. Also that -- we started January 1, 1999. That is
24 the day he took the bench.
25 Q. So working with him over 15 years, have you got to I
ATTORNEYS' REPORTING SERVICE (512) 327-4650 138 11
1 guess realize a pattern in how his docket is called?
2 A. I do.
3 Q. Okay. To become a certified court reporter, what
4 kind of qualifications, education do you need?
5 A. First, you get your certification from some
6 accredited school that basically is a proficiency that you
7 receive that qualifies you to take a State test that's given
8 quarterly. At that point you have to pass three phases, 225
9 words a minute Q&A, 200 jury charge, and 180 literary. If you
10 pass those -- all three at 95 percent, you become certified by
11 the State of Texas.
12 Q. And did you do such?
13 A. I did.
14 Q. So what certifications do you hold?
15 A. I hold that certification as an official court
16 reporter for the State of Texas.
17 Q. Now, on February 25th and March 13th, what were you
18 doing?
19 A. We were handling a nonjury docket here in Comal
20 County.
21 Q. And were you recording the record that was going on
22 those two dates?
23 A. I was.
24 Q. How did you do such?
25 A. I do it by court reporting machine and I also have
ATTORNEYS' REPORTING SERVICE (512) 327-4650 139 12
1 got a laptop. And that's how I report all of our jury and
2 nonjury cases.
3 Q. Is part of your job preparing records for court
4 cases?
5 A. Yes, it is.
6 Q. Did you prepare a record in this particular case?
7 A. Yes, I did.
8 Q. What were the dates you prepared the record for?
9 A. If memory serves, February 25th, 2014, and March 13,
10 2014.
11 Q. How many copies of the records did you prepare?
12 A. I prepared an original and two copies.
13 Q. Who did you give those copies to?
14 A. The original and one copy to you, and then I mailed
15 a copy to opposing counsel.
16 Q. How did you mail the copy to opposing counsel?
17 A. Certified return receipt.
18 Q. And did you return -- did you receive a return
19 receipt?
20 A. Yes, sir.
21 Q. Do you remember when it was delivered to him?
22 A. I want to say on or about April the 2nd. I also
23 sent both counsel an electronic copy via e-mail.
24 Q. So when you say "both counsel," is that Mr. Graham
25 as well?
ATTORNEYS' REPORTING SERVICE (512) 327-4650 140 13
1 A. Yes.
2 MR. PALMITIER: May I approach the witness, Your
3 Honor?
4 THE COURT: Yes.
5 (State's Exhibit No. 1 marked)
6 Q. (By Mr. Palmitier) I'm showing you what's been
7 marked as State's Exhibit No. 1. Do you recognize this?
8 A. I do.
9 Q. And who prepared it?
10 A. I prepared this.
11 Q. Okay. Did you prepare it with a device that was
12 capable of making an accurate reflection of the record on those
13 two dates?
14 A. Yes, I did.
15 Q. Has it been changed or altered in any way?
16 A. No, sir.
17 MR. PALMITIER: If the record would just reflect
18 I'm showing State's No. 1 to Mr. Graham for inspection.
19 MR. GRAHAM: I'll object to relevance on the
20 basis it contains the whole docket. I don't think it's
21 relevant so far as this Show Cause hearing goes. In addition
22 to that, it contains hearsay statements.
23 THE COURT: That's overruled. It's admitted.
24 MR. PALMITIER: State offers Exhibit 1.
25 Q. (By Mr. Palmitier) Look at State's 1. Can you
ATTORNEYS' REPORTING SERVICE (512) 327-4650 141 14
1 please tell the Court what time Judge Steel started calling the
2 docket on February 25th?
3 A. With permission, I'm going to unbind this so that I
4 can take a look at the time stamps, with your permission.
5 Okay. On page three of Volume 1, the setup time, that first
6 time that's indicated, 8:22:22AM, is the time that I came in
7 and set up my machine -- my laptop and my machine to prepare
8 for the day. And then the next time that shows up, the 9:06
9 a.m., is the time when he began calling the docket.
10 Q. You said you have worked with Judge Steel for 15
11 years?
12 A. That's correct.
13 Q. And you are familiar with his practice of how he
14 calls the docket?
15 A. I am.
16 Q. Could you please, for the record, describe how the
17 docket is typically called?
18 A. Yes. The -- what he normally does is he will call
19 the civil docket first. In cases -- or in dockets when we have
20 both civil and criminal, he will call the civil docket first,
21 take announcements. If there are announcements of ready, he
22 will go ahead and hear those if they are short. Short
23 announcements of ready he will go ahead and try and get those
24 heard. That can take 10 or 15 minutes.
25 Once he's taken any short announcements of ready
ATTORNEYS' REPORTING SERVICE (512) 327-4650 142 15
1 or uncontested announcements, he will then call the criminal
2 docket and take announcements for the criminal docket.
3 Q. Okay. Once he takes announcements for the criminal
4 docket, does he have any sort of preference on how he takes up
5 the cases?
6 A. His main preference is custody over non-custody
7 cases. His priority is that he likes to resolve all custody
8 cases, if possible, before the noon hour so they transport --
9 you only have to make one transport for the day and don't have
10 to come back after lunch.
11 Q. Now, on this particular day, without getting into
12 specifics, was there anything out of the ordinary on how the
13 docket was called?
14 A. My memory, no. I think it went the traditional way.
15 Q. Okay. Refer you to your report or record. On page
16 21, please tell the Court, for the record today, what time
17 Ms. Chenoweth's case was first called.
18 A. That would be 9:24 a.m.
19 Q. Looking to your record, was Ms. Chenoweth present?
20 A. The defendant answered present or answered, "Here."
21 Q. Okay. Did Mr. Graham announce present for
22 Ms. Chenoweth?
23 A. It appears that he was not present. The defendant
24 then responds to the Court whether her counsel was here. Her
25 response was, "I haven't heard from him."
ATTORNEYS' REPORTING SERVICE (512) 327-4650 143 16
8 please tell the Court today what time Mr. Graham announced for
18 advises counsel to either get a waiver of arraignment from
19 their client or he will arraign them. And that is what was
20 stated here on page 35. The Court says, "For arraignment. I
21 need you to say hello to the DA's office. If there is nothing
22 we can do today, then get me a waiver of arraignment or bring
ATTORNEYS' REPORTING SERVICE (512) 327-4650 144 17
1 Q. What did the Court then start taking up after --
2 after that discussion with Mr. Graham?
3 A. Let's see. It looks like he's continuing to look
4 for people that didn't answer the docket call, and then looks
5 like he took a sentencing.
6 Q. Now, once the Court has handled all of the matters
7 that it has before it in the morning, what does the Court
8 typically do?
9 A. The Court will then usually take a break once he's
10 taken the announcements of ready on the first docket call. And
11 sometimes we get announcements of ready during the morning and
12 those usually are taken before any breaks are done. If there
13 is nothing else to be heard or ready, the Court at that time
14 will take a break.
15 Q. Looking at the record, can you tell what time the
16 Court took a recess that morning?
17 A. Recess was taken at 9:48 a.m.
18 Q. And do you know what time the Court started back up?
19 A. Yes. It was 10:48 a.m.
20 Q. Once the Court started back up, what did the Court
21 start doing?
22 A. The Court's usual procedure -- and did so in this
23 case -- is to recall the docket on any of the cases that have
24 not been resolved.
25 Q. Refer you to page 48 of your record.
ATTORNEYS' REPORTING SERVICE (512) 327-4650 145 18
1 When did he address Mr. Graham?
2 A. It that would be at 10:52 a.m.
3 Q. What was the discussion that took place at that
4 time?
5 A. Discussion had to do -- Mr. Graham was announcing
6 that they had a plea ready in this case.
7 Q. Okay. And what did the Court let Mr. Graham know at
8 that time?
9 A. He had -- he had actually scratched that case off of
10 his docket once he had spoken to Mr. Graham earlier. And so
11 now he was aware that there was a plea ready.
12 Q. Could he take up the plea at that time?
13 A. He did not take it up then.
14 Q. Why was that? What was in front of it?
15 A. Either previous announcements of ready or, again,
16 custody cases take priority.
17 Q. Was there any other hearing set for that morning
18 that took precedent?
19 A. Yes. There was one in the original announcement on
20 the docket call. There was an attorney out of Bexar County who
21 had a trial starting at 1:30. I believe he also had a custody
22 case here, a contested Motion to Revoke. And I think the
23 announcement was approximately one hour.
24 Q. And the contested hearing -- was that defendant in
25 custody?
ATTORNEYS' REPORTING SERVICE (512) 327-4650 146 19
1 A. Yes. That is my recollection.
2 Q. Did that take precedent over Mr. Graham's matter
3 with Ms. Chenoweth?
4 A. That's correct.
5 Q. Now, I refer you to page 63 of your record. Please
6 tell the Court today what the Court did before it broke for
7 lunch.
8 A. At that point, once he recognized that it was 11:10
9 a.m. and that he had an announcement of one hour on a contested
10 Motion to Revoke, he advised the three remaining cases to
11 return at 1:15 while he resolved the Motion to Revoke and took
12 a lunch break.
13 Q. Once the Court reconvened at 1:15, was there
14 anything else in front of Ms. Chenoweth's case?
15 A. His custom is -- which is he recalled the docket.
16 Of course, there were only three cases left. He took those
17 announcements and then began hearing the cases that were ready.
18 Q. What time did the Court start back up after its
19 lunch recess?
20 A. The Court started up at 1:34 p.m.
21 Q. And was Mr. Graham present at 1:34 p.m.?
22 A. He was not present.
23 Q. Was Ms. Chenoweth present?
24 A. Yes, she was present.
25 Q. Okay. Did the Court call her case to be heard?
ATTORNEYS' REPORTING SERVICE (512) 327-4650 147 20
1 A. Yes, he did.
2 Q. And what happened next?
3 A. The defendant announced, "I'm here." And the
4 bailiff then announced to the Court that Mr. Graham has not
5 come back yet.
6 Q. Did you all wait for Mr. Graham?
7 A. No, sir, we began hearing the cases that were ready
8 to be heard.
9 Q. Okay. What time did you all finish the cases that
10 were being heard?
11 A. 1:46 p.m.
12 Q. And, before that, did the Court have a conversation
13 with Ms. Chenoweth?
14 A. Actually, at 1:46, once the last case that was ready
15 was heard and resolved, then he had the discussion with
16 Ms. Chenoweth.
17 Q. And what was that discussion?
18 A. That discussion is: "Ms. Chenoweth, we're going to
19 reset your case. I was clear. He was to be back here at 1:15.
20 I will get your attorney's attention and I will do that before
21 I leave the courthouse today. Thank you. You're excused."
22 Q. At 1:46 you all convened court?
23 A. We -- right, adjourned.
24 Q. Okay. At 1:46, did you see Mr. Graham in this
25 courtroom?
ATTORNEYS' REPORTING SERVICE (512) 327-4650 148 21
1 A. At 1:46 he was not present in the courtroom.
2 Q. What did you start doing at 1:46?
3 A. What I do when we finish for the day I start
4 breaking down my equipment. If there were any exhibits that
5 were marked during any contested hearings or anything like
6 that, I get with the clerk and make sure those are all turned
7 over and then break down.
8 Q. How long does it take you to break down?
9 A. Approximately 10 minutes, give or take, 10 to 12.
10 Q. Did Mr. Graham eventually show up?
11 A. Yes, he did.
12 Q. Can you estimate about what time that was?
13 A. I'm going to say it was -- I was almost through
14 breaking down. I don't remember if I had any exhibits or if I
15 dealt with the clerk on anything that day. So approximately
16 10, 12 minutes after we adjourned.
17 Q. And, by estimation, what time was that?
18 A. That would make it 1:55 p.m.
19 Q. Now, on March 13th, you were recording the record as
20 well?
21 A. That's correct.
22 Q. Was Ms. -- what was Ms. Chenoweth's case set for on
23 that day?
24 A. I don't see it stated here, but my guess would be
25 that it would be for arraignment.
ATTORNEYS' REPORTING SERVICE (512) 327-4650 149 22
1 Q. Now, was her name called on the docket that morning?
2 A. Yes, it was.
3 Q. Looking at your record, can you see what time it
4 was?
5 A. Yes, 9:38 a.m.
6 Q. And was Ms. Chenoweth present?
7 A. She was.
8 Q. Was Mr. Graham present for her?
9 A. He was not present.
10 Q. What is the discussion the Court had with
11 Ms. Chenoweth?
12 A. With Ms. Chenoweth?
13 Q. Correct.
14 A. The Court states, "Is your attorney retained or
15 appointed?"
16 The defendant replies, "Appointed."
17 The Court: "Mr. Graham is appointed?"
18 Defendant: "Uh-huh."
19 And the Court says, "Stay put."
20 Q. Does the Court ask her if she's had any sort of
21 contact with Mr. Graham? I refer you to page 6 of your report,
22 record.
23 A. The Court asks Ms. Chenoweth, "Ms. Chenoweth, who is
24 coming over from his office?"
25 The defendant responds, "I don't know."
ATTORNEYS' REPORTING SERVICE (512) 327-4650 150 23
1 The Court: "You don't know?"
2 The defendant: "No, sir."
3 The Court: "When your attorney gets here, tell
4 him I would like to talk to him."
5 Her response was, "I don't even know if he's
6 coming. I haven't talked to him at all since the day I -- when
7 I came back after lunch and he never showed up."
8 Q. Looking at the record for the rest of March 13, did
9 Mr. Graham ever show up that day?
10 A. He did not.
11 Q. Did he ever -- did someone from his office ever show
12 up that day?
13 A. No, sir.
14 Q. Did anybody announce for Ms. Chenoweth?
15 A. No, sir.
16 Q. Was Mr. Graham to be present on March 13th for any
17 other reason?
18 A. I don't believe so.
19 Q. Do you know if he was to be there on a Show Cause
20 hearing?
21 A. I'm sorry. Yes, he was.
22 Q. Did he announce for that?
23 A. No, sir.
24 MR. PALMITIER: Pass the witness, Your Honor.
25 THE COURT: Mr. Graham?
ATTORNEYS' REPORTING SERVICE (512) 327-4650 151 24
1 CROSS EXAMINATION
2 BY MR. GRAHAM:
3 Q. You were talking about basically you were the court
4 reporter on the 13th of March; is that correct?
5 A. That is correct.
6 Q. Okay. And also indicated that basically I did not
7 show up at that particular Show Cause hearing. Isn't that
8 right?
9 A. That's correct, sir.
10 Q. But it's also true that I filed a Motion for
11 Continuance insofar as the Show Cause hearing goes because I
12 had prior court appearances in other counties. Are you aware
13 of that?
14 A. I believe there was mention of that, yes, sir.
15 Q. In other words, it wasn't a situation where there
16 was just a blatant disrespect for the Court date. Isn't that
17 correct?
18 A. To my knowledge, no.
19 Q. Okay. In addition to that, at that particular time
20 I had not been personally served or you don't know if I had
21 been personally served with the Show Cause Order at that point
22 prior to the 13th. Isn't that right?
23 A. That is correct. I did not know.
24 Q. Okay. So, in other words, you couldn't say one way
25 or another if it had taken place, the personal service, or not.
ATTORNEYS' REPORTING SERVICE (512) 327-4650 152 25
1 Isn't that correct?
2 A. That is correct.
3 Q. All right. Now, you were also talking about the
4 court appearance insofar as the February 25th. Is that
5 correct? You were also the court reporter on that particular
6 day?
7 A. I was.
8 Q. Okay. And, typically, how long does it take for
9 pleas to be completed, an agreed plea?
10 A. He gets through them pretty quick. I want to say
11 five minutes, give or take.
12 Q. Five minutes. Okay. But, on this particular day,
13 the plea for Ms. Chenoweth was not reached. Isn't that right?
14 It wasn't handled on that particular day, was it?
15 A. It ultimately was not.
16 Q. Okay. Now, you were talking about earlier also that
17 you were very familiar with the court procedures and how the
18 docket is called. Is that correct?
19 A. That is correct.
20 Q. And so is it typical in a court procedure where, you
21 know, there is an announcement issue on a case -- typically,
22 does the Court issue Show Causes for all of those attorneys who
23 don't announce ready for whatever reason a few minutes after
24 the docket call in the morning?
25 A. His typical procedure is that if it's been a
ATTORNEYS' REPORTING SERVICE (512) 327-4650 153 26
1 recurring problem he will do it initially. A lot of times he
2 will ask staff to prepare one. If --
3 MR. GRAHAM: I'm going to object to that, Your
4 Honor.
5 THE COURT: I'll sustain.
6 Listen to -- just a second. I'll do it.
7 Listen to the question and answer just that
8 question.
9 THE WITNESS: Yes, sir.
10 Q. (By Mr. Graham) So, in other words, when you say
11 that it's not a regular practice to issue a Show Cause Order
12 for attorneys that for whatever reason might announce ready,
13 you know, a few minutes after the 9:00 o'clock docket call --
14 that's not a regular practice, is it?
15 A. Repeat your question, please.
16 Q. It's not a regular practice for an attorney who
17 issues or says ready shortly after 9:00 o'clock docket call --
18 it's not a regular court practice to issue a Show Cause Order
19 for all of those attorneys, is it?
20 A. Not to issue one, no, sir.
21 Q. Okay. And so, on that particular day, were there
22 any other instances of individuals who may not have announced
23 ready for whatever reason where their offices had to be called?
24 A. That's usually -- it usually does happen, yes.
25 Q. Okay. Were Show Cause Orders issued for those
ATTORNEYS' REPORTING SERVICE (512) 327-4650 154 27
1 individuals?
2 A. I would have to go back and look through the docket.
3 Q. Okay. You don't know?
4 A. I don't know.
5 Q. Now, you had also indicated there were a number of
6 contested hearings that were actually set on that particular
7 day; is that correct?
8 A. I believe there was one.
9 Q. Okay. And those contested hearings basically take
10 precedent over pleas, right?
11 A. If they are custody cases, yes. He does normally
12 try to take the shorter cases first and then the longer cases
13 are put towards the back of the docket.
14 Q. Okay. But you just indicated a second ago that a
15 plea just takes five minutes, so that would be one of those
16 short cases. Isn't that correct?
17 A. That is correct.
18 Q. But, on this particular day on the 25th, my plea or
19 the Chenoweth plea was not dealt with, even though it was a
20 short case; isn't that correct?
21 A. That is correct.
22 Q. Now, there was also a contested hearing that was
23 actually scheduled to take place after lunch as well; isn't
24 that correct? After 1:15, right?
25 A. That is incorrect.
ATTORNEYS' REPORTING SERVICE (512) 327-4650 155 28
1 Q. And so what remaining cases were there? Were they
2 all pleas?
3 A. There were three cases and they were -- none had
4 announced contested.
5 MR. GRAHAM: I'll pass the witness.
6 THE COURT: Anything else?
7 MR. PALMITIER: Just briefly, Your Honor.
8 REDIRECT EXAMINATION
10 Q. You mentioned typically a Show Cause will not be
11 issued for people who are late in the morning?
12 A. Not -- not -- I believe the way he phrased the
13 question was early in the day.
14 Q. Is it typical in your experience over 15 years for
15 an attorney not to show back up after being ordered to after a
16 lunch break?
17 A. No, it's not typical.
18 Q. What about the next hearing not showing up?
19 A. That was the first.
20 MR. PALMITIER: Pass the witness.
21 THE COURT: Anything else, Mr. Graham?
22 MR. GRAHAM: Yes.
23 RECROSS EXAMINATION
24 BY MR. GRAHAM:
25 Q. Insofar as the Court date on the 13th of March, do
ATTORNEYS' REPORTING SERVICE (512) 327-4650 156 29
1 you have any knowledge that suggests that, you know, I actually
2 attempted to move that court date but was prohibited from doing
3 so?
4 A. I have no knowledge of that.
5 Q. Okay.
6 MR. GRAHAM: No further questions, Your Honor.
7 THE COURT: Anything else?
8 MR. PALMITIER: No further questions.
9 THE COURT: Is he excused?
10 MR. GRAHAM: Yes, Your Honor.
11 THE COURT: You're excused. Thanks for being
12 here. You'll put the exhibit back together?
13 THE WITNESS: Yes, sir, I will.
14 THE COURT: Next?
15 MR. PALMITIER: The State calls Chelsie
16 Chenoweth.
17 (The witness entered the courtroom and was
18 placed under oath by the Court.)
19 THE WITNESS: Yes, sir.
20 THE COURT: Have a seat up here, please. Scoot
21 up close to the microphone so everybody can hear you.
22 Go ahead.
23 CHELSIE CHENOWETH,
24 having been first duly sworn, testified as follows:
25 DIRECT EXAMINATION
ATTORNEYS' REPORTING SERVICE (512) 327-4650 157 30
1 BY MR. PALMITIER:
2 Q. Could you please state your name for the record?
3 A. Chelsie Chenoweth.
4 Q. Ms. Chenoweth, how do you know Mr. Graham?
5 A. He's my Court-appointed attorney.
6 Q. Okay. On February 25th, were you supposed to be
7 here in court?
9 Q. What was that for?
10 A. Some charges that I had.
11 Q. Was Mr. Graham supposed to be here with you?
12 A. Yes.
13 Q. What time did you get here, if you remember, on
14 February 25th?
15 A. Probably around 9:00 o'clock.
16 Q. Was Mr. Graham here with you?
17 A. Not yet.
18 Q. Had you heard from him that day?
19 A. No.
20 Q. Had you heard from him at all prior to that?
21 A. The only time I talked to him was one time when he
22 became my lawyer and I had called him and he talked to me about
23 my case. That was the only time we talked ever.
24 Q. Did he let you know he was going to be late that
25 day?
ATTORNEYS' REPORTING SERVICE (512) 327-4650 158 31
2 Q. Do you remember around what time he showed up?
3 A. I really don't. It was at least 30 minutes later.
4 Q. Okay. You were set for arraignment that day. What
5 did you want to do that day?
6 A. I was ready to get it -- get sentenced.
7 Q. Okay. Were you able to do that?
8 A. No. I got a reset.
9 Q. Do you remember what time you were told to be back
10 in the afternoon that day?
11 A. 1:15.
12 Q. What time were you back that day?
13 A. 1:15.
14 Q. What time did Mr. Graham come back that day?
15 A. I don't know. The judge released me before he came
16 back.
17 Q. Did he call you to tell you he was going to be late?
18 A. No.
19 Q. That afternoon?
21 Q. Did anybody from his office call you?
23 Q. Do you know where he was?
25 Q. What did you want to do that afternoon?
ATTORNEYS' REPORTING SERVICE (512) 327-4650 159 32
1 A. Wanted to get sentenced. Wanted to get everything
2 over with.
3 Q. Were you able to do that that day?
4 A. No.
5 MR. PALMITIER: Pass the witness, Your Honor.
6 THE COURT: Cross-examine.
7 CROSS EXAMINATION
8 BY MR. GRAHAM:
9 Q. I represented you in your case before. Isn't that
10 correct, Ms. Chenoweth?
11 A. Yeah.
12 Q. Isn't it true basically that the plea paperwork in
13 the case was done during the morning time? Isn't that right?
15 Q. But, for whatever reason, the Court did not hear
16 your case. Isn't that right?
17 A. Yeah, he sent us to lunch.
18 Q. And also isn't it correct that basically I had to
19 remind the Court several times about, hey, look, you have got a
20 case that's ready for plea prior to the lunch hour? Isn't that
21 correct?
22 A. Yeah, you did.
23 Q. Because the Court basically continued on several
24 instances to skip over your case. Isn't that right? They
25 didn't call your case?
ATTORNEYS' REPORTING SERVICE (512) 327-4650 160 33
1 A. Oh, yeah. That day?
2 Q. Okay. That's correct.
3 A. Yeah, uh-huh.
4 Q. In the morning time. Okay.
5 A. Uh-huh.
6 Q. And so basically it was a situation where, you know,
7 we had the plea paperwork done early in the morning, but yet
8 you were forced to wait until the afternoon time. Isn't that
9 correct?
10 A. Yes.
11 Q. And you had to come back to court. Isn't that
12 correct?
13 A. Uh-huh.
14 Q. Okay. Did the Court, when they indicated that you
15 had to come back at 1:15 -- did they make any kind -- did the
16 Court make any kind of a statement that, well, if you don't
17 come back at a certain time that there could be a contempt?
18 Did the Court say that?
19 A. I don't think so.
20 Q. All he said was to be back at 1:15; isn't that
21 right?
22 A. Uh-huh, yeah.
23 Q. And the Court also indicated there were other cases
24 that it had in addition to yours after the lunch hour. Isn't
25 that right?
ATTORNEYS' REPORTING SERVICE (512) 327-4650 161 34
1 A. Yeah.
2 Q. Did the Court make any kind of statements about any
3 contested hearings or other hearings that were going to happen
4 after the lunch hour?
5 A. No.
6 Q. But they indicated that there were other cases?
7 A. Yeah.
8 Q. Isn't that correct? Okay. So there was no
9 indication about when actually your case was going to go after
10 1:15?
11 A. Right.
12 Q. Correct?
13 A. Right.
14 Q. You didn't have any specifics on that, right?
15 A. Right.
16 Q. And since the Court didn't provide me with any
17 specifics, would you agree with me that I wouldn't know
18 specifically when your case would have been taken up after the
19 lunch hour?
20 A. Yeah.
21 MR. PALMITIER: Objection; speculation.
22 MR. GRAHAM: I'll withdraw that, Your Honor.
23 THE COURT: Okay.
24 Q. (By Mr. Graham) And -- so isn't it true that you
25 were actually appointed a new Court-appointed attorney for your
ATTORNEYS' REPORTING SERVICE (512) 327-4650 162 35
1 case?
2 A. Yeah.
3 Q. Is that right?
4 A. Uh-huh.
5 Q. And you also indicated you wanted to get this case
6 resolved on the 25th in the morning time as expeditiously as
7 possible, right?
8 A. Yeah.
9 Q. Okay. Now, would you say that the appointment of a
10 new attorney for your case -- would that have delayed the
11 process or made it quicker?
12 A. I think it made it quicker because yesterday I
13 finished.
14 Q. Okay.
15 A. Just one time.
16 Q. Right. But this could have been something that
17 could have been resolved before. Isn't that right?
18 A. Yeah.
19 Q. Okay.
20 MR. GRAHAM: I'll pass the witness at this time,
21 Your Honor.
22 THE COURT: Anything else?
23 MR. PALMITIER: No further questions, Your
24 Honor.
25 THE COURT: Is she free to go?
ATTORNEYS' REPORTING SERVICE (512) 327-4650 163 36
ATTORNEYS' REPORTING SERVICE (512) 327-4650 164 37
1 A. It was a mixed docket, nonjury criminal and civil
2 cases.
3 Q. Did you have any contact with Mr. Graham that day?
4 A. Yes, I did.
5 Q. And could you please explain on the record what the
6 contact was?
7 A. Mr. Graham had a case, a criminal case on the
8 docket. He came in in the morning docket, checked in with me.
9 He was running a little bit late. He made contact with his
10 defendant. I saw him throughout the day. We broke for lunch
11 approximately around 12:00 o'clock. We came back at 1:15.
12 There was a couple of cases left for the afternoon docket. We
13 concluded the business of the docket that day for Judge Steel
14 and Mr. Graham's case was the only case left.
15 Q. Did Mr. Graham show up for the afternoon?
16 A. Eventually he did. Not -- not at the time we came
17 back.
18 Q. What time was everybody supposed to be back at?
19 A. Judge Steel told all the remaining cases on the
20 docket personnel to be back at 1:15.
21 Q. Do you remember what time Mr. Graham showed up?
22 A. It was around 2:00 o'clock, maybe a few minutes
23 before 2:00 o'clock. Judge Steel had just left the bench when
24 Mr. Graham came in.
25 Q. Did you have a discussion with him at all at that
ATTORNEYS' REPORTING SERVICE (512) 327-4650 165 38
1 point?
2 A. I did because the judge had left the bench and Mr.
3 Graham's client had already been released. Mr. Graham asked me
4 where his client was. I said that the judge had excused her.
5 I told Mr. Graham I would ask Judge Steel if he would like to
6 talk to him in chambers. I went back in chambers. I asked
7 Judge Steel if he would like to see Mr. Graham. He said that
8 he would not like to see him, to inform Mr. Graham that he was
9 going to issue a Show Cause.
10 So I came back out in the courtroom. I told Mr.
11 Graham he did not wish to see him at this time, that a Show
12 Cause Order was going to be issued.
13 Q. Did Mr. Graham have any explanation as to where he
14 had been or why he was late?
15 A. No. He responded to me, "Is the judge really going
16 to issue a Show Cause Order for me being 45 minutes late?"
17 I said I really had no say-so in the matter.
18 That's just what he told me to relay to Mr. Graham.
19 MR. PALMITIER: Pass the witness, Your Honor.
20 THE COURT: Mr. Graham?
21 MR. GRAHAM: I have no questions, Your Honor.
22 THE COURT: All right. You can step down.
23 Thank you. You can remain in the courtroom.
24 He's released from the Rule now, isn't he?
25 MR. GRAHAM: That's correct, Your Honor.
ATTORNEYS' REPORTING SERVICE (512) 327-4650 166 39
1 THE COURT: All right. Thank you.
2 MR. PALMITIER: And the only other witness I
3 have, Your Honor, is a Cynthia Browne. It's in relation to the
4 second Show Cause Order.
5 THE COURT: All right. Cynthia Browne.
7 placed under oath by the Court.)
8 THE COURT: Come up here and have a seat,
9 please.
10 CYNTHIA BROWNE,
11 having been first duly sworn, testified as follows:
12 DIRECT EXAMINATION
13 BY MR. PALMITIER:
14 Q. Would you please state your name for the record?
15 A. Cynthia Browne.
16 MR. GRAHAM: I'm going to object to the State
17 proceeding on this particular Show Cause. The only Show Cause
18 Order that I had notice of was the one insofar as Ms. Chenoweth
19 goes, Your Honor.
20 THE COURT: That's overruled.
21 Go ahead.
22 Q. (By Mr. Palmitier) How do you know Mr. Graham?
23 A. He's my Court-appointed attorney.
24 Q. Is he still your Court-appointed attorney this day?
25 A. I fired him the last time I was in court.
ATTORNEYS' REPORTING SERVICE (512) 327-4650 167 40
1 Q. The last time you were in court, do you remember
2 what day that was?
3 A. Last week. I don't remember what day.
4 Q. Do you remember why you were here?
5 A. I have no idea why I was here.
6 Q. Were you set to be here for a jury trial?
7 A. Yes, on March 31st.
8 Q. Now, do you remember that day? We called the docket
9 and we called your name for announcements?
11 Q. What happened?
12 A. My attorney wasn't here.
13 Q. Were you here?
14 A. Yes.
15 Q. Were you ready for trial?
16 A. Yes.
17 Q. Okay. Had you spoken to your attorney before that
18 day?
19 A. Probably like a month prior maybe, maybe three
20 weeks. I'm not sure.
21 Q. Okay. Had he told you that he was not going to be
22 there that day?
23 A. No.
24 Q. Had anybody from his office told you he was not
25 going to be there that day?
ATTORNEYS' REPORTING SERVICE (512) 327-4650 168 41
16 because I had my trial on March 31st. I was kind of confused
ATTORNEYS' REPORTING SERVICE (512) 327-4650 169 42
1 Q. And were you ready to proceed to trial that day?
2 A. No. It got reset to May 12th.
3 MR. PALMITIER: Pass the witness, Your Honor.
4 THE COURT: Cross-examine.
5 CROSS EXAMINATION
6 BY MR. GRAHAM:
7 Q. Ms. Browne, I don't know if you are actually aware
8 of this, but your case was actually far down the list insofar
9 as cases that were going to trial. Are you aware of that?
11 Q. In other words, it wasn't likely that your case was
12 actually going to go to trial because the Court also had a
13 capital murder case that was going on that particular day.
14 Isn't that right?
15 A. Yes.
16 MR. GRAHAM: I'll pass the witness.
17 THE COURT: Anything else?
18 MR. PALMITIER: No further questions.
19 THE COURT: You can be returned. Thank you for
20 coming.
21 Anything else?
22 MR. PALMITIER: No, Your Honor. No further
23 witnesses at this time.
24 THE COURT: Mr. Graham?
25 MR. GRAHAM: I would like to give some testimony
ATTORNEYS' REPORTING SERVICE (512) 327-4650 170 43
1 in this case, Your Honor.
2 THE COURT: Sure. Come on up.
3 MR. GRAHAM: Whether I do it here or on the
4 witness stand -- how would you like me to do it?
5 THE COURT: Let's do it up here on the witness
6 stand.
7 MR. GRAHAM: Sure.
8 (The witness was placed under oath by the
9 Court.)
10 THE COURT: Have a seat, please.
11 CHRISTOPHER GRAHAM,
12 having been first duly sworn, testified as follows:
13 DIRECT TESTIMONY
14 THE WITNESS: It's just a narrative format?
15 THE COURT: Introduce yourself just like you
16 were calling a witness.
17 THE WITNESS: Sure. My name is Christopher
18 Graham. I'm an attorney. I have been Court-appointed on
19 several cases, the Chelsie Chenoweth case and also the Cynthia
20 Browne case.
21 And in response to the State's -- or actually
22 the Show Cause Orders that were issued in the Chelsie Chenoweth
23 case, I just wanted to start with how this whole process began.
24 Basically, on the 12th of February, 2014, I
25 tried to set this case in order to get it done and also pled
ATTORNEYS' REPORTING SERVICE (512) 327-4650 171 44
1 out on the 13th because I had other cases that were set on that
2 same day. Okay. I was actually unable to do so because when I
3 got to court on the 13th what happened was the Court indicated
4 that somehow the case was not on the Court docket. This was a
5 situation where the Chenoweth case probably could have been
6 dealt with on that day. I was then told the case was reset to
7 the 25th of February, in which case I then appeared again on
8 the Chenoweth case in order to see if we could get it resolved.
9 My understanding is the case was set for an arraignment
10 setting.
11 And at that point I didn't hear the Chenoweth
12 case actually had been called insofar as the docket goes. And
13 so I walked in the court and I said, "Well, has the case been
14 called?"
15 And the Court then makes the notation.
16 Shortly thereafter I negotiate with the
17 prosecutors, were able to work out a deal for her insofar as a
18 plea goes. The plea paperwork was signed. And, for whatever
19 reason, I had difficulty in order to get the plea actually
20 heard. This is about maybe 9:30 or maybe 9:45, somewhere in
21 there. It didn't take very long in order to get the plea
22 paperwork done in the case.
23 And so basically the Court then goes on a break.
24 I'm trying to get the plea done and actually heard by the
25 Court. So this is a situation where basically from almost
ATTORNEYS' REPORTING SERVICE (512) 327-4650 172 45
1 10:00 o'clock until about 1:15 when the Court reconvenes after
2 lunch I'm trying to get my plea done. It doesn't make sense to
3 me as to why it's taking so long in order to get this plea done
4 in order to move this case.
5 In order to use my time efficiently, I'm a --
6 I'm a solo practitioner. And I had a case that was actually
7 set for trial in the next few days in San Antonio. I figured
8 that once the Court broke for the lunch period from about, you
9 know, 12:00 o'clock to about 1:15 or, you know, give or take,
10 11:45 to about 1:15 I would be in a position to go ahead and
11 visit one of my clients who was in the Bexar County jail. So
12 that's what I tried to do because I had an investigator who was
13 going to be talking to him also at that time. So I wanted to
14 make the most effective use of my time.
15 So I talked to my client down there in
16 preparation for trial in Bexar County. Then I come back. And,
17 for that reason, I was a few minutes late. Now, I didn't think
18 that it was going to be a problem because, No. 1, the Court did
19 not tell me that, you know, you are automatically going to get
20 a Show Cause issued.
21 In addition to that, based on the Court and how
22 it functioned before, you know, things don't typically start on
23 time in this particular court. So I thought that I had a few
24 minutes in order to spare.
25 In addition to that, the Court also indicated
ATTORNEYS' REPORTING SERVICE (512) 327-4650 173 46
1 that there were -- there was a contested hearing that was going
2 to be heard shortly after the lunch hour. So I thought that I
3 would be okay.
4 And so I came back and then I tried to discuss
5 the matter with the Court about, you know, "Where is my client
6 at? What's going on here? This is the reason for the delay."
7 And then I get hit with a Show Cause.
8 Now, I've practiced law for quite some time in
9 various counties and I have never seen a situation where an
10 attorney gets a Show Cause, you know, after one issue. And
11 it's an excusable issue. And we're talking about just a few
12 minutes late.
13 Now, the thing about it is this is not a
14 situation where there was any kind of deliberate disrespect to
15 the administration of the court by no means. It was a
16 situation where, you know, I have got to move around to
17 different counties in order to take care of cases that are set
18 for trial. So I did show up, you know, albeit it a few minutes
19 late.
20 And insofar as the March 13th, 2014 hearing
21 goes, the Court issued me a court date in order to be here.
22 However, I had already had other court dates that were set that
23 I could not move in Williamson County. So, as a result of
24 that, I filed a Motion for Continuance. It was denied. I
25 tried via telephone in order to talk to the Court about moving
3 circumstances, I think that a Show Cause or at least a contempt
4 finding in this case is inappropriate. It's not a situation
5 where there was any kind of intentional disregard for Court
15 A. I didn't hear her name called. I didn't hear Ms.
16 Chenoweth's name called. That's why I had to approach the
17 bench in order to make sure that, you know, I was registered as
ATTORNEYS' REPORTING SERVICE (512) 327-4650 175 48
1 A. I believe it was a phone call I was taking.
2 Q. Who was that phone call with?
3 A. It was one of my clients out of Dallas.
4 Q. What was the name?
5 A. Ms. Harper I believe.
6 Q. What is her first name?
7 A. I don't know. I don't know what the first name is
8 off the top of my head.
9 Q. Do you know what case it relates to?
10 A. It was -- I think it was a breach of contract case
11 or something like that.
12 Q. Do you know which court it was set in?
13 A. Court No. 3 I believe out of Dallas.
14 Q. She is the plaintiff or the defendant in that case?
15 A. I think she's plaintiff.
16 Q. Who is the defendant in that case?
17 A. Not sure.
18 Q. So what time did you come in the courtroom on
19 February 25th?
20 A. I would say maybe about 9:15, somewhere in there.
21 9:15, 9:20 I would say.
22 Q. You just notified the Court today that you had lots
23 of things to do that day?
24 A. I don't understand "lots of things." What do you
25 mean?
ATTORNEYS' REPORTING SERVICE (512) 327-4650 176 49
1 Q. You said you were a busy solo practitioner. You had
2 to be in San Antonio. You had to go to the jail?
3 A. Right. I had a case, State versus Kochanski (sic)
4 that was set, you know, just a few days away. It was
5 imperative that I talk to him in jail on that day. I have got
6 to make, you know, productive use of my time. I just can't sit
7 around during the lunch hour, so I wanted to make productive
8 use of my time.
9 Q. Did you notify the Court that you had to go do that?
10 A. No, I thought that I could actually make it. I
11 thought that I could go there and make it back.
12 Q. When you realized that you weren't going to make it
13 back, did you notify the Court that you were going to be late?
14 A. I did not. I wasn't really concerned about it
15 because I figured that the Court had, you know, several
16 hearings, contested hearings that were going on, and the Court
17 wouldn't take up Ms. Chenoweth's case immediately.
18 Q. You got to look at the record this morning, correct?
19 A. The one that you issued in evidence? That one?
20 Q. And you got a copy of it, right?
21 A. I believe I got a copy via e-mail, if it's the same
22 document.
23 Q. Okay. And also by certified mail?
24 A. Not by certified mail. I think someone from my
25 office may have picked it up, but I did get the copy by e-mail.
ATTORNEYS' REPORTING SERVICE (512) 327-4650 177 50
5 that day, there were custody hearings it had to take up and the
11 perhaps there were cases that were resolved. I'm just going by
13 hearings. That's what I heard before I left to lunch.
15 that day, they had a contested hearing they were taking up
16 before lunch. There were no contested hearings taken up after
20 before my case is what -- I didn't know when it was going to be
ATTORNEYS' REPORTING SERVICE (512) 327-4650 178 51
1 A. I didn't actually peruse -- I didn't look at it in
2 detailed fashion. I got it, but I kind of skimmed through it.
3 Q. Would you like a chance to look at it right now?
4 A. Sure.
5 Q. If you could, look at it for its accuracy as to
6 whether or not there was a contested hearing scheduled in the
7 afternoon on that day.
8 A. What was your question again? Your question is to
9 see whether or not there was a contested hearing in the
10 afternoon? Is that your question?
11 Q. Was there a contested hearing that was announced for
12 that afternoon?
13 A. Okay. Page 62 talks about the last custody case
14 I'll take before -- or that last case I will take before we
15 start the contested hearing is Rick Anthony Cruz. I've got a
16 punishment in Lopez still pending. I've got Martinez we're
17 about to start.
18 You know, this is shortly before I believe we
19 actually broke for lunch, so all of this stuff was going to
20 take place prior to, you know, dealing with the Chenoweth plea
21 is what my understanding was.
22 Q. What time was that at?
23 A. This is -- this is between 10:53 and 11:27 a.m.
24 Q. If I refer you to page 62 of the record --
25 A. Right.
ATTORNEYS' REPORTING SERVICE (512) 327-4650 179 52
1 Q. Okay.
2 A. Are you asking me?
3 Q. Yes.
4 A. Right. I'm talking about page 62 where he's talking
5 -- he's got all of this -- these other cases that were going to
6 proceed. And this is after I was asking about the status of
7 the Chenoweth case after the Court had neglected to call it.
8 Q. Okay. Right after you say, "Your Honor, if the
9 Court can take up -- Ms. Chenoweth as well," what does the
10 Court say?
11 A. The Court says, "Eventually. It's not a custody
12 case. I have a custody case that's ready." So --
13 Q. You say, "Okay." What does the Court say then?
14 A. "How long is that going to take? It's already ten
15 after 11:00."
16 Q. What does Mr. McCrary say?
17 A. "I don't think it will take too long."
18 Q. Okay. So you have got a contested hearing that the
19 prosecutor announces is not going to take too long. Is that
20 correct?
21 A. Right. That's what it says.
22 Q. And then what does the Court say?
23 A. The Court says, "Well, I'll tell you what. I'm
24 going to reset -- for those counsel that weren't here at 9:00
25 o'clock, Lopez will be reset for 1:15. I'm going to do
ATTORNEYS' REPORTING SERVICE (512) 327-4650 180 53
1 Martinez."
2 And then the Court talks about Mr. Rodriguez.
3 "I've got to get this other one done. Reset for 1:15."
4 So it looks like to me there was a lot of other
5 cases that were -- that were going to go.
6 Q. By "a lot of other cases," he says, "Well, I'll tell
7 you what. I'm going to reset -- for those counsel that weren't
8 here at 9:00, Lopez" -- that's one, right?
9 A. Right.
10 Q. He's going to do Martinez right now?
12 Q. "Castilleja. I know you were here, Mr. Rodriguez,
13 but I've got to get this other one done. Reset for 1:15.
14 Chenoweth will be reset for 1:15."
15 So how many cases is that that's reset for 1:15?
16 A. And also it says that I will -- I'll take this
17 contested hearing. Rick Anthony Cruz is what he's also talking
18 about as well, as the Court says. So I guess four or five
19 cases, four cases, give or take.
20 Q. To be reset at 1:15?
21 A. That was my understanding.
22 Q. If you read the record right there --
23 A. Right.
24 Q. -- how do you understand that to be he's resetting
25 the contested hearing after 1:15?
ATTORNEYS' REPORTING SERVICE (512) 327-4650 181 54
1 A. It doesn't say when he's going to reset it. It just
2 says we're going to start a contested hearing.
3 Q. So what time did you show back up after lunch?
4 A. I would say maybe about 1:35, give or take, because
5 it took them awhile in order to actually transport the prisoner
6 or the defendant from his custody -- from his cell in San
7 Antonio. And they were running behind, and also the traffic
8 getting back. But I did get back.
9 Q. Who was that that you were visiting in San Antonio?
10 A. It was Kochanski.
11 Q. What was the first name?
12 A. Anthony Kochanski.
13 Q. Do you know the docket number for that case?
14 A. No, I don't --
15 Q. Do you know what court it's set in?
16 A. Off the top of my head, no.
17 Q. What was so important that day that you had to go
18 visit him?
19 A. Well, there was an investigator who was helping me
20 prepare for trial in this case and he had an imminent trial
21 setting. And the only time I could meet with the investigator
22 and also get with him and Kochanski was at that time during
23 lunch. And I wanted to make productive use of my time at that
24 time. I just didn't want to sit out here and just do nothing.
25 Q. Was it actually set for trial?
ATTORNEYS' REPORTING SERVICE (512) 327-4650 182 55
1 A. It was.
2 Q. Did it go to trial?
3 A. It did not on that particular day. It was moved.
4 But considering the amount of time that Mr. Kochanski had been
5 in jail, there was a high probability it was going to go at
6 that time.
7 Q. Once again, did you notify the Court that you were
8 going to be running late?
9 A. I did not, no.
10 Q. Did you ask for a reset to go handle the matter in
11 San Antonio?
12 A. A reset? A reset for the Chenoweth case?
13 Q. Right.
14 A. I did not, no, because I thought that I could get
15 back in time and the contested matters would be completed and I
16 could come back and deal with it.
17 Q. And it's your testimony here today that you showed
18 back up at 1:35?
19 A. I don't know the exact time, but it was a few
20 minutes after -- it was a little bit of time after 1:15. I
21 didn't log it down or anything like that.
22 Q. You did not tell the bailiff that you were 45
23 minutes late?
24 A. No, I did not. It was before 2:00. I know that.
25 Before 1:50, probably before 1:45 I would say.
ATTORNEYS' REPORTING SERVICE (512) 327-4650 183 56
1 Q. You have had a chance to look at the record, right?
2 A. Correct.
3 Q. You saw what time it ended at?
4 A. Well, I know what the court reporter said. However,
5 he wasn't in the courtroom when I got here.
6 Q. So his testimony was false earlier then?
7 A. That's correct.
8 Q. And so would the bailiff's testimony be false?
9 A. I did speak to the bailiff. Insofar as his time
10 estimates when I got here, I don't know if that's accurate.
11 But when I got here, I don't recall seeing the court reporter
12 here.
13 Q. Move forward to the March 13th date. Why were you
14 supposed to be here?
15 A. Presumably for a Show Cause setting, Show Cause
16 setting in the Chenoweth case.
17 Q. So you were set for two -- two matters on that date?
18 A. One, as far as I know.
19 Q. Ms. Chenoweth and your Show Cause?
20 A. Right. Right.
21 Q. Two separate matters?
22 A. Okay. Yes.
23 Q. Did you show up that day?
24 A. I did not, no.
25 Q. Why is that?
6 Cause was faxed to me. I don't remember. A day or two after.
8 Q. Would you like to see a copy of the Court's record?
23 A. Right. I don't know exactly when it was, but I did
24 send in a Motion for Continuance as well as my response to the
ATTORNEYS' REPORTING SERVICE (512) 327-4650 185 58
1 Q. I'm showing you what you filed as Response to Court
2 Orders to Show Cause and Request for Continuance.
3 For the record, can you read what date that was
4 filed on?
5 A. It says here March 10th, 2014.
6 Q. Okay. And so how long after you received notice was
7 that then?
8 A. Apparently, the -- it was file stamped March 10th of
9 2014.
10 Q. Okay. How many days is that before you were set to
11 be here?
12 A. Just three days apparently. However, it was
13 actually mailed in. That's why it's --
14 Q. When did the Court receive it?
15 A. All the documents are stamped March 10, 2014. I
16 assume that's when it was received and also entered into your
17 system or the court system.
18 Q. Did you get a ruling on that Motion for Continuance?
19 A. Did not, no.
20 Q. Yet you failed to show up on March 13th?
22 Q. Going back to that Motion for Continuance, was that
23 a sworn-to affidavit?
24 A. It was an unsworn declaration is what it was.
25 Q. Okay. So you didn't -- filing an unsworn
ATTORNEYS' REPORTING SERVICE (512) 327-4650 186 59
1 declaration, not getting a ruling, you failed to show up on
2 March 13th for Ms. Chenoweth's matter and your Show Cause?
3 A. That is correct. I didn't show up.
4 Q. Why couldn't you be here that day?
5 A. Well, I figured one of my associates was going to be
6 able to make it on that particular day. But, apparently, he
7 had some kind of issue with the South by Southwest issue that
8 was going on in Austin and he could not get down here.
9 Q. Were you able to make it that day?
10 A. I was not, no.
11 Q. Why not?
12 A. Because of the hearings that I had in Williamson
13 County.
14 Q. What hearing was that?
15 A. I had two or three cases that were set on that
16 particular day. I don't recall who they were off the top of my
17 head, but I did have several prior arranged court appearances
18 in Williamson County.
19 Q. You don't know the names of those defendants?
20 A. I have got it in my calendar, but I don't know off
21 the top of my head, no.
22 Q. Do you remember which court you were in?
24 Q. What time did you have to be there?
25 A. Morning time, 9:00 a.m.
ATTORNEYS' REPORTING SERVICE (512) 327-4650 187 60
1 Q. What time did you finish up there?
2 A. Probably noontime.
3 Q. You don't remember which courtroom you were in?
4 A. I don't recall, no.
5 Q. Do you remember which judge you were in front of?
6 A. Off the top of my head, no. That was my first
7 appearance in Williamson County. I do not remember.
8 Q. You did make an appearance that day?
9 A. I did.
10 Q. You will be on the record there that day?
12 Q. After finishing up, where did you go next?
13 A. I don't recall. I think I spoke to my operations
14 guy in my office and that was pretty much it. I think I went
15 back to Dallas is what I think insofar as taking cases --
16 Q. Did you check in with the Court here?
17 A. No, because I filed a Motion for Continuance. I
18 would assume the Court would either deny it or reset the case.
19 That's what I figured was going to happen.
20 Q. Looking at the motion you filed --
21 A. Right.
22 Q. Look at No. 5. You say, "The Court inexplicably
23 took a break from conducting court activities from
24 approximately 9:45 to 11:20."
25 Looking at the record, is that correct?
ATTORNEYS' REPORTING SERVICE (512) 327-4650 188 61
1 A. Well, those are estimates based on my estimation. I
2 know it was a long time that the Court took a break and my plea
3 was not handled during that period.
4 Q. Are the times correct?
5 A. I didn't record them down specifically, so it's an
6 approximation.
7 Q. Knowing what the times are now, is that a correct
8 estimate?
9 A. I would say, give or take, a correct approximation,
10 yes.
11 Q. Would you like to look at the record?
12 A. I don't see where it says in here specifically. All
13 I know is that the break was protracted.
14 Q. Looking at No. 9, "I conducted a consultation in
15 Bexar County and then came back to the Court approximately 1:35
16 to complete the plea in this case."
17 It's still your testimony today that you showed
19 A. Now, insofar as, you know, did I write it down at
20 that time as when I got back? It's an approximation. I think
21 it was about 1:35 when I got back. That's correct.
22 Q. After looking at the record and hearing testimony
23 today, do you still think that's correct, approximately 1:35?
24 A. Give or take, yes. It's a correct approximation.
25 Q. Now, that day --
ATTORNEYS' REPORTING SERVICE (512) 327-4650 189 62
1 A. I wasn't actually -- I didn't actually talk to the
2 bailiff until shortly thereafter, but I was here around 1:35.
3 Q. On February 25th, was the Court able to dispose of
4 Ms. Chenoweth's case?
5 A. No, it was not.
6 Q. On March 13th, was the Court able to dispose of Ms.
7 Chenoweth's case?
8 A. I would assume not at that point. I assume the
9 Court basically appointed somebody else to the case.
10 Q. Why was the Court not able to do so on February 25th
11 or March 13?
12 A. Insofar as -- I'm just kind of guessing here, but on
13 the 25th I really don't have an answer for it. I think
14 certainly if pleas take five minutes in order to do, there is
15 no reason why we should have been forced or I should have been
16 forced to wait from, you know, 10:00 o'clock to 1:15 in order
17 to do a plea. I don't know the reason of that. I don't know
18 the answer to that.
19 Q. And, on March 13th, why was the Court not able to
20 dispose of Ms. Chenoweth's case?
21 A. Because the Court gave me an arbitrary date where I
22 had preexisting hearing dates that were set in Williamson
23 County on that day. And I wasn't able to be present and also
24 my associate could not get here. And he apparently had
25 communication with the Court about his difficulties getting
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1 here because of an accident in downtown Austin, Mr. James Lacy.
3 in court, we were not able to handle Ms. Chenoweth's case in an
6 tardiness, the plea was unable to be handled. The plea could
10 the morning time and, you know, there had to be a wait until
12 basically pleas just take five minutes in order to get done.
18 Thursday prior to trial there is some kind of an announcement.
19 However, I called about Cynthia Browne's case. And, No. 1, it
20 was set so quickly for trial after her prior court date, which
21 was kind of strange I thought, and also because of how young
22 her case was it was far down the list. The probability of it
23 going was almost nonexistent. In addition to that, I was told
24 by Mr. Steve Thomas, one of the court coordinators here, that
25 there was a capital murder that was going and so therefore
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1 Ms. Browne was not going to go at all.
2 Q. What did the notice say in regards to being here on
3 the Thursday prior to trial?
4 A. After -- I assumed that the notice specified you
5 have got to be here for a pretrial date if it's set or a court
6 date or trial date if it's set. Sentence No. 2 or 3 it says
7 the Thursday prior to trial there are announcements.
8 Q. Did you show up the Thursday prior to trial to make
9 an announcement?
10 A. I did not, no, because I was told the case would not
11 go.
12 Q. Did that make you believe that you still did not
13 have to announce?
14 A. Yes, and also I didn't think there was protocol
15 until I read it more thoroughly about having to appear the
16 Thursday prior. I didn't know there was an automatic setting.
17 Q. Do you typically have to announce ready for trials,
18 not ready?
19 A. Most of the places that I operate in typically there
20 is a pretrial. And at that point you announce ready or not
21 ready or there is a specific setting on a specific day and you
22 announce ready. But sometimes, you know, basically if there
23 are other cases that are definitively going to go and the Court
24 is not going to pull your client over and the case is not --
25 there is no need to make an announcement if the case doesn't
ATTORNEYS' REPORTING SERVICE (512) 327-4650 192 65
1 go.
2 Q. Does that mean that you would not have to then show
3 up?
4 A. If the case doesn't go, sometimes an e-mail,
5 sometimes a call. "Look, Mr. Graham, your case is not going to
6 go." That's how it works in some of the counties.
7 Q. You have been doing this for a long time, right?
8 A. For awhile.
9 Q. Do you know that on a list -- on a docket sheet
10 sometimes cases don't go? Sometimes they are supposed to go
11 and they don't, right?
12 A. Correct.
13 Q. That's common knowledge?
14 A. Correct.
15 Q. Routine in your practice?
16 A. Correct.
17 Q. Okay. So what would then prevent you -- or what
18 would make you think that you would not have to make an
19 announcement?
20 A. Well, like I said before, I thought that my
21 appearance was required even on a pretrial day or a trial day.
22 And that wasn't the case. But the notice says the Thursday
23 prior you need to be here to make an announcement. I thought
24 the case wasn't going to go. I didn't think the announcement
25 was ready. I thought my required appearances were on a
ATTORNEYS' REPORTING SERVICE (512) 327-4650 193 66
1 pretrial day that was set or a trial day.
2 Q. But you acknowledge that's not what the notice told
3 you to do?
4 A. Right, and I didn't read it until -- until later,
5 that particular line.
6 MR. PALMITIER: No further questions.
7 THE COURT: Do you have any more questions of
8 yourself?
9 THE WITNESS: No, Your Honor.
10 THE COURT: You can step down.
11 THE WITNESS: Thank you very much, Your Honor.
12 THE COURT: Call your next.
13 MR. GRAHAM: No other witnesses, Your Honor.
14 THE COURT: State have anything else?
15 MR. PALMITIER: No, Your Honor. We'll rest.
16 THE COURT: Both sides rest and close?
17 MR. GRAHAM: Yes, Your Honor.
18 THE COURT: State has the right to open and
19 close.
20 MR. PALMITIER: Briefly, I think it's all before
21 the Court in the records and the testimony you heard this
22 morning, Your Honor. Clearly, Mr. Graham did not show up on
23 time on February 25th which, in and by itself, is not enough
24 for a Show Cause. But then it's not -- I guess we're not on
25 Mr. Graham's time. It's on the Court's time. There are things
ATTORNEYS' REPORTING SERVICE (512) 327-4650 194 67
1 that a Court must take up first. And that's always been the
2 Court's practice. Custody cases have to go first. They have
3 to go back to the jail. They take precedent. And Mr. Graham
4 was ordered by the Court to be back here at 1:15, which he
5 failed to do so.
6 It's all in the record, Your Honor. You can
7 look to the testimony from Bailiff Nick Reininger. The
8 testimony from Rick Roberts, the court reporter, was that he
9 didn't show up until closer to 2:00 o'clock, 45 minutes late.
10 They were unable to handle Ms. Chenoweth's case that day,
11 although she was ready to plea and wanted to plea. That, in
12 and by itself, is probably not enough to get to the Show Cause.
13 However, what happens next is on March 13th Mr.
14 Graham fails to wholly appear on that date. That is what gives
15 rise to the Show Cause Order and what he needs to be held in
16 contempt for, Your Honor.
17 Looking at the Court's record and the testimony
18 you just heard, he received notice of it on February 25th via
19 fax and February 27th by mail. And on March 10th he filed his
20 notice for continuance. It was an unsworn declaration. And
21 without getting a hearing on it or ruling, he wholly failed to
22 show up or anybody else from his office. And, once again,
23 Ms. Chenoweth's case had to be reset.
24 And, additionally, he was there -- noticed to be
25 there that day for the Show Cause hearing which he failed to
ATTORNEYS' REPORTING SERVICE (512) 327-4650 195 68
1 show up to as well. That, Your Honor, is enough to rise to the
2 level of contempt. It slowed down the Court's process in that
3 we were trying to move Ms. Chenoweth's case. We were unable to
4 do so on two different occasions, Your Honor.
5 Additionally, in regards to Ms. Browne's case,
6 he was noticed as well to be here on the Thursday before and
7 failed to do so. Although he may have spoken to somebody about
8 whether or not another case was going, that still does not
9 relieve him of having to show up and make an announcement of
10 ready or not ready on the Thursday prior to trial. For that,
11 Your Honor, the State is asking to hold him in contempt.
12 THE COURT: Mr. Graham?
13 MR. GRAHAM: Your Honor, the State actually
14 indicated a second ago that various actions that allegedly were
15 committed by me do not rise to the level of contempt. In other
16 words, they are saying that basically that the 25th appearance
17 -- that didn't rise to a level of contempt in what took place
18 on that particular day. However, a Show Cause Order was
19 actually issued on that particular day. You heard testimony
20 from the court reporter that indicated that it's not standard
21 practice to issue a Show Cause Order under these circumstances.
22 In other words, there were other situations where attorneys may
23 have been a few minutes late insofar as making a docket
24 announcement, but they didn't get, you know, Show Cause Orders
25 issued.
ATTORNEYS' REPORTING SERVICE (512) 327-4650 196 69
1 For whatever reason, it seems as if I have been
2 singled out here and unjustifiably so. This is not a situation
3 where there was any kind of intentional disrespect to the
4 Court. I was here that particular morning. I showed up. I
5 tried to set the case before. For whatever reason, the case,
6 insofar as Ms. Chenoweth goes, was not set on the 13th. I came
7 back again in order to get the case finalized and waited for
8 numerous hours to order to try to get the plea done. And, for
9 whatever reason, we still could not get it done, each though
10 the Court, you know, would have taken 5 or 10 minutes in order
11 to hear a plea.
12 In addition to that, insofar as -- you know, I'm
13 a solo practitioner, Your Honor, and there are other
14 arrangements and other things I have got to do. I just can't
15 wait in one court in order to wait for a plea to take place. I
16 wanted to make constructive use of my time during the lunch
17 hour and I figured that I was able to go to San Antonio, talk
18 to Mr. Kochanski that was actually set for trial and make it
19 back.
20 The action of the jailers there insofar as not
21 getting Mr. Kochanski back from the jail in a prompt fashion
22 and also traffic issues necessitated my taking a few minutes.
23 However, I was here in the afternoon again, after having waited
24 for numerous hours, to do the plea for Ms. Chenoweth. And, to
25 my chagrin, the case had basically been -- been reset and she
ATTORNEYS' REPORTING SERVICE (512) 327-4650 197 70
1 had been dismissed.
2 Now, insofar as the March 13th hearing, this is
3 not also my situation where basically I was trying to
4 disrespect the Court in any way. By all means, I filed a
5 Motion for Continuance in order to alert the Court that, hey, I
6 have got a preexisting hearing in a different county and
7 therefore I can't make it.
8 What I also did was have one of my associates,
9 Mr. Lacy, try to make it. He had contact with the Court. And
10 basically he was unable to make it due to an accident in
11 downtown.
12 So I think that if you look at this, if you look
13 at the law that's applicable to Show Causes and also to
14 contempt situations like this, this is not a situation where I
15 obstructed the administration of justice of this Court here.
16 If anything, the Court has somewhat delayed this process
17 because Ms. Chenoweth's plea could have been taken a long time
18 ago. And I think that appointing a new attorney on the case
19 actually delayed the process. This was a case that I was
20 intimately familiar with. This is a case where plea documents
21 were already drafted. And so there was no reason to appoint
22 somebody else and waste additional time on this plea.
23 The -- there is some case law that talks about
24 in these kinds of cases that contempt is not to be presumed in
25 these kinds of cases. In other words, contempt is actually
ATTORNEYS' REPORTING SERVICE (512) 327-4650 198 71
1 presumed not to exist and that -- and that basically the Court
2 needs to look for things that obstruct the administration of
3 justice. That was not the case here. That was not my intent
4 here. So I would ask the Court not to find a contempt in this
5 case and proceed forward.
6 THE COURT: Anything else from the State?
7 MR. PALMITIER: No, Your Honor.
8 THE COURT: In Cause No. CR2013-519, In Re
9 Christopher Graham, the Court finds insufficient evidence to
10 hold the defendant in contempt.
11 In Cause No. CR2013-366, it appears to the Court
12 that the defendant seems to make his own determination as to
13 when he should or should not arrive in court from all the
14 evidence the Court has heard today. It's a continuing pattern.
15 Therefore, the Court finds that the defendant did fail to
16 arrive on time at the 9:00 a.m. docket call on February 25th,
17 2014. The defendant failed to return to court at 1:15 p.m. on
18 February 25th, 2014, as instructed by the Court; that
19 Mr. Graham failed to appear in court on March 13, 2014, for
20 Cause No. CR2013-366, State of Texas versus Chelsie Michelle
21 Chenoweth, as well as Mr. Graham's own Show Cause noticed on
22 that date without a grant of continuance or a leave from the
23 Court. Mr. Graham's conduct does obstruct the administration
24 of justice with the pattern that the evidence today has shown.
25 The Court now holds you in contempt in Cause No.
ATTORNEYS' REPORTING SERVICE (512) 327-4650 199 72
1 CR2013-366 and sets your punishment for confinement in the
2 Comal County Jail for a period of 15 days and a fine of $300.
3 You can go with the bailiff.
4 MR. GRAHAM: Can we -- can we postpone that
5 particular commission?
6 THE COURT: No, you can go with the bailiff now.
7 An appeal bond at $5,000.
8 MR. GRAHAM: Appeal bond $5,000?
9 THE COURT: Yes.
10 MR. GRAHAM: Okay.
11 (End of Proceedings)
ATTORNEYS' REPORTING SERVICE (512) 327-4650 200 73
1 C E R T I F I C A T E
3 STATE OF TEXAS ) CAUSE NOS. CR2013-519, CR2013-366
4 COUNTY OF COMAL )
6 I, DOTTIE NORMAN, Deputy Official Court Reporter in
7 and for the 274th Judicial Court of Comal County, Texas, do
8 hereby certify that the above and foregoing constitutes a true
9 and correct transcription of the hearing in the above-styled
10 and numbered cause, all of which occurred in open court and
11 reported by me.
12 I further certify that I am neither attorney nor
13 counsel for, related to, nor employed by any of the parties to
14 the action in which this testimony was taken. Further, I am
15 not a relative or employee of any attorney of record in this
16 cause, nor do I have a financial interest in the action.
17 I further certify that the total cost for the
18 preparation of this transcript is $472.00. Witness my official
19 hand this the 19th day of January, 2015.
21 /s/ Dottie Norman ____________________________ 22 DOTTIE NORMAN, Texas CSR 2283 Expiration Date: 12/31/16 23 1806 Toro Canyon Road Austin, Texas 78746 24 (512) 327-4650
ATTORNEYS' REPORTING SERVICE (512) 327-4650 201 202 203 204 Non-Jury Docket February 25, 2014 2
1 VOLUME 1 2 NON-JURY DOCKET
3 February 25, 2014
4 PAGE VOL. 5 Non-Jury Docket ...................................3 1
6 Reporter's Certificate ...........................75 1 7
RICHARD E. ROBERTS, JR., CSR (830) 228-4634 205 Non-Jury Docket February 25, 2014 3
1 P R O C E E D I N G S 2 NON-JURY DOCKET
3 THE COURT: Okay. I've got some civil cases.
4 Let me call them and get announcements and then I'll take them 5 up when I can after I've dealt with at least calling the
6 criminal docket. 7 2013-1144, Adams and Adams versus Lakecroft and
8 Western Hemisphere Investments.
9 MS. BASCON: The plaintiffs are present, Your 10 Honor. 30 minutes?
11 MR. FAHLE: I think that's right.
12 THE COURT: What are you attempting to continue? 13 MS. BASCON: I have a hearing on a Motion for
14 Summary Judgment scheduled for March 13th and he's looking to 15 push that back.
16 THE COURT: Okay. See if you can work something
17 out. I'll mark you as ready and I'll call the criminal docket 18 and deal with it accordingly.
19 MS. BASCON: Thank you, Your Honor.
20 THE COURT: Thank you. 21 2013-1296, in the Matter of the Marriage of
22 Dove. Give them a call and see if they're going to come. 23 2012-1030, Skidmore versus Brown and Prestige
24 Gunite.
25 MR. SOMMERS: The movant is ready, Your Honor.
RICHARD E. ROBERTS, JR., CSR (830) 228-4634 206 Non-Jury Docket February 25, 2014 4
1 Five minutes or less. 2 THE COURT: And your client is Ms. Skidmore?
3 MR. SOMMERS: Mr. Skidmore. Yes, Your Honor.
4 THE COURT: I'm sorry. Is Mr. Skidmore here? 5 Is there any filed opposition from the defendants?
6 MR. SOMMERS: No, Your Honor. I called them 7 yesterday morning to see, but neither of the other attorneys
8 called me back.
9 THE COURT: Let me see that file. 10 THE CLERK: (Complies.)
11 THE COURT: If you will approach Mr. Sommers.
12 MR. SOMMERS: (Complies.) 13 THE COURT: I assume you've given all of the
14 required notice? 15 MR. SOMMERS: Yes, Your Honor. Here is the
16 original motion to withdraw. Based upon the issues that have
17 occurred, I assumed that Mr. Skidmore would consent. 18 THE COURT: Okay.
19 MR. SOMMERS: I gave him until yesterday to
20 consent. He didn't consent, so we filed a grounds motion to 21 withdraw. Basically our relationship has deteriorated to such
22 an extent that I can't, in good faith, represent him or put 23 him on a witness stand.
24 THE COURT: Well, he just didn't get to know you
25 very well.
RICHARD E. ROBERTS, JR., CSR (830) 228-4634 207 Non-Jury Docket February 25, 2014 5
1 (Laughter.) 2 MR. SOMMERS: That is the proof. That's the
3 letter attached to it showing that the motion sent to
4 Mr. Skidmore was sent. 5 THE COURT: I'll mark this as Movant's Exhibit 1
6 and admit it. 7 MR. SOMMERS: Thank you, Your Honor. And I
8 would rather not go into the factual basis for what occurred.
9 THE COURT: He's not here. You've given proper 10 notice. There's no objection from the other side. You've
11 given his address in your motion. Have you got an order?
12 MR. SOMMERS: Yes, Your Honor, I do. 13 THE COURT: The Motion to Withdraw is approved.
14 If you would do me the favor of contacting 15 opposing counsel and letting them know that I've signed this
16 and what his address is for future notices.
17 MR. SOMMERS: Absolutely, Your Honor. And I 18 will go ahead and send a copy to all parties involved in the
19 case, too.
20 THE COURT: Okay. 21 MR. SOMMERS: Can I take it to the clerk's
22 office and get a copy? 23 THE COURT: I'm going to return your motions. I
24 assume they're already filed?
25 MR. SOMMERS: Yes, sir, Your Honor.
RICHARD E. ROBERTS, JR., CSR (830) 228-4634 208 Non-Jury Docket February 25, 2014 6
1 THE COURT: I've got your exhibit and order. 2 And if you will just deal with my clerk, she will tell you --
3 MR. SOMMERS: Okay.
4 THE COURT: -- what she allows and doesn't 5 allows.
6 MR. SOMMERS: Thank you, Your Honor. May I be 7 excused?
8 THE COURT: You may. Good seeing you again,
9 Bill. 10 MR. SOMMERS: Yes, Your Honor.
11 THE COURT: And temporary orders in 2013-522, In
12 the Interest of Dome, a Child. 13 MS. VILLARREAL: That's been passed.
14 THE COURT: That's been passed. 15 Did they not tell you that?
16 UNIDENTIFIED SPEAKER: No.
17 THE COURT: Who's your attorney? 18 UNIDENTIFIED SPEAKER: Tracy Wright-Reneau.
19 THE COURT: Okay. Give her a call. But they've
20 called my office and said that they don't want the hearing, so 21 you're excused.
22 UNIDENTIFIED SPEAKER: Thank you. 23 THE COURT: Give her a call before you get too
24 far away in case there's some misunderstanding, but it's been
25 passed by agreement.
RICHARD E. ROBERTS, JR., CSR (830) 228-4634 209 Non-Jury Docket February 25, 2014 7
1 UNIDENTIFIED SPEAKER: Thank you, Your Honor. 2 THE COURT: Thank you.
3 Okay. I'm looking for attorneys in the Dove
4 matter and I've got one short Motion for Continuance I'll take 5 up here in a moment.
6 Let me go ahead and call the criminal docket. 7 If I call your name as the defendant, I need you to stand so
8 we know that you're here. I need defense counsel to let me
9 know whether you are obviously here, whether you're ready or 10 conferring. And I'm going to assume the State is ready unless
11 they announce otherwise.
12 I'll start with three punishment hearings. 13 2013-227, Gilbert Lopez.
14 THE DEFENDANT: Here. 15 MS. VILLARREAL: The attorney called. He will
16 be late.
17 THE COURT: Your attorney has called. He will 18 be here shortly. Do not leave without permission of the
19 Court.
20 2013-282, Camille Sauls. 21 THE DEFENDANT: Present. My lawyer is running
22 late. 23 THE COURT: Okay. Give Mr. Dwyer a call, but
24 he's told the client -- his client he's running late. It
25 shouldn't be a problem.
RICHARD E. ROBERTS, JR., CSR (830) 228-4634 210 Non-Jury Docket February 25, 2014 8
1 And 2013-446, Jenesha Martinez. 2 MS. JONES: She's in custody, Judge. We're
3 ready.
4 THE COURT: Thank you. 5 If you announce ready, especially on a custody
6 case, stay close. I'm going to come back and pick those up 7 before the first break.
8 2011 -- Motions to Adjudicates and Motions to
9 Revoke. 2011-031, Carl Stahmann. 10 THE DEFENDANT: Here.
11 THE COURT: Do you have an attorney,
12 Mr. Stahmann? 13 THE DEFENDANT: Yes, sir.
14 THE COURT: Who's that? 15 THE DEFENDANT: Joseph Strickland.
16 THE COURT: First name?
17 THE DEFENDANT: Joseph. 18 THE COURT: And is he out of San Antonio?
19 THE DEFENDANT: Yes, sir.
20 THE COURT: Do you have a phone number for him 21 in case he doesn't show up here shortly?
22 THE DEFENDANT: I do, but I just talked to him. 23 It's (210)447-2600.
24 THE COURT: Give his office a call and confirm
25 that.
RICHARD E. ROBERTS, JR., CSR (830) 228-4634 211 Non-Jury Docket February 25, 2014 9
1 Marked as a contested hearing: 04-315, Benito 2 Martinez.
3 MR. CANTRELL: Judge, he's present and we are
4 ready. I just want to let the Court know I have a trial 5 that's supposed to begin at 1:30 today.
6 THE COURT: Approach. 7 (Mr. McCrary and Mr. Cantrell approach.)
8 THE COURT: Estimates of time? Well, first of
9 all let me ask this. Are we proving up both -- 10 MR. CANTRELL: We're going to plead true, Your
11 Honor.
12 THE COURT: You're going to plead true. 13 MR. CANTRELL: It's an issue of just punishment.
14 MR. MCCRARY: I have three witnesses subpoenaed. 15 I may not need to call all of them.
16 THE COURT: How many have you got?
17 MR. CANTRELL: Just my client. 18 THE COURT: Okay. 1:30?
19 MR. CANTRELL: My trial starts at 1:30.
20 THE COURT: Where? 21 MR. CANTRELL: In County Court 13 in Bexar
22 County. 23 THE COURT: Okay. I will --
24 MR. McCRARY: My witnesses are supposed to be
25 here at 10:30. It won't take long, though.
RICHARD E. ROBERTS, JR., CSR (830) 228-4634 212 Non-Jury Docket February 25, 2014 10
1 THE COURT: Okay. We'll try to get it started 2 as close to 10:30 as possible.
3 MR. CANTRELL: Thank you, Judge.
4 THE COURT: Thank you. 5 2011-631, Brian Wilson.
6 MS. MENDEZ: Judge, the defendant is in custody, 7 Your Honor. And I would like a reset.
8 THE COURT: Have you talked to the D.A.'s office
9 yet? 10 MS. MENDEZ: I spoke to them previously, but I
11 have not since the last time we came to court.
12 THE COURT: Approach. 13 (Mr. McCrary and Ms. Mendez approach.)
14 THE COURT: Is this a state jail punishment? 15 MR. McCRARY: Yes, sir, it is.
16 THE COURT: Been in jail for 50 days. Why do we
17 need more time? 18 MS. MENDEZ: We're asking for medical records
19 and I'm still waiting for them to be submitted. Nix Health
20 Care let me know that the records from them would be here this 21 week. But as far as Methodist Health Care, they still expect
22 ten days before I receive them. 23 MR. McCRARY: I guess what I need to know is if
24 he's going to accept my plea offer or not.
25 MS. MENDEZ: He has rejected the plea offer.
RICHARD E. ROBERTS, JR., CSR (830) 228-4634 213 Non-Jury Docket February 25, 2014 11
1 He's made that clear to me. 2 MR. McCRARY: Then we need to reset it for
3 contested hearing is what needs to happen.
4 THE COURT: Okay. 5 MR. MCCRARY: I conveyed a plea offer at the
6 last setting and it was reset to let him decide. This is the 7 first I've heard he's rejected it. But either he's going to
8 plead and go to state jail peacefully or it's going to be a
9 fight. 10 THE COURT: When do you anticipate those medical
11 records?
12 MS. MENDEZ: Methodist Hospital is the last 13 hospital I heard from and they said that they expect it will
14 be at least another 10 to 15 days before I even receive the 15 records.
16 THE COURT: Reset for a contested hearing in
17 approximately 30 days on my docket. What -- what date is 18 that? It would be the end of March.
19 THE CLERK: The 24th.
20 THE COURT: The 24th of March for a contested. 21 Bring your witnesses.
22 Is he contesting the truth of the matter or just 23 the punishment?
24 MS. MENDEZ: The punishment.
25 THE COURT: Talk to him. Let's see if we can
RICHARD E. ROBERTS, JR., CSR (830) 228-4634 214 Non-Jury Docket February 25, 2014 12
1 get him out here to plead true to the allegations to shorten 2 that hearing and let everybody know who they need to bring.
3 MS. MENDEZ: Okay.
4 THE COURT: Okay? 5 MS. MENDEZ: Thank you.
6 THE COURT: So I will mark you conferring at 7 this point. If he's willing to plead true to the allegations,
8 let me know: We will bring him out, he'll plead true, and
9 we'll set a contested punishment hearing. 10 MS. MENDEZ: Yes, Your Honor.
11 THE COURT: Thank you.
12 MS. MENDEZ: Thank you. 13 THE COURT: 2013-300, Brenden Weir.
14 MR. MILLAN: Your Honor, he's in custody. We 15 would ask to have that moved to a contested docket. He's also
16 the next one, Your Honor, 13-301.
17 THE COURT: Is he going to -- approach. 18 MR. MILLAN: Not today, Your Honor.
19 THE COURT: You're not going to approach today?
20 MR. MILLAN: Oh, I'm sorry. 21 THE COURT: Want to bet?
22 (Laughter and Mr. McCrary and Mr. Millan 23 approach.)
24 THE COURT: Is he going to plead true to the
25 allegations or are we contesting everything?
RICHARD E. ROBERTS, JR., CSR (830) 228-4634 215 Non-Jury Docket February 25, 2014 13
1 MR. MILLAN: I'm pretty sure he's going to be 2 pleading true to some of the allegations at least.
3 THE COURT: Do you want to try to do that today
4 so we can shorten the hearing and lessen the costs on the 5 State to bring in all of their witnesses on the allegations?
6 MR. MILLAN: My problem is I have witnesses that 7 I want to bring in that aren't available today.
8 THE COURT: But is that for punishment or for
9 the truth of the allegations? 10 MR. MILLAN: For punishment.
11 THE COURT: We can reset for a contested
12 punishment. My question is: Is he willing to plead true to 13 the allegations today so we know what we're contesting?
14 MR. MILLAN: Judge, I would ask that we move 15 everything if we can. Because I mean I'm trying to get people
16 in here regarding -- I understand what you're saying if you
17 can save some of the time. I've got three cases set in 18 Guadalupe County this morning, also. So I wanted to see if
19 can get this reset.
20 THE COURT: Okay. 21 MR. MILLAN: I think next time I do want to
22 contest -- at a minimum contest the punishment the next time. 23 But I'm --
24 THE COURT: Let's set it for two weeks not
25 contested and then let's see what allegations he's willing to
RICHARD E. ROBERTS, JR., CSR (830) 228-4634 216 Non-Jury Docket February 25, 2014 14
1 plead true to. I mean that can be a difference of an hour, 2 hour and a half in my court.
3 MR. MILLAN: I understand.
4 THE COURT: So I'll give you -- it's a second 5 degree felony. We will reset it in two weeks. It will not be
6 contested. The primary issue then is whether you're going to 7 plead him true or not.
8 MR. MILLAN: Right.
9 THE COURT: If he's not, then be prepared to go 10 again fairly quickly in two weeks --
11 MR. MILLAN: I understand, Judge.
12 THE COURT: -- if the State or you can be ready 13 to do that.
14 MR. MILLAN: I understand, Judge. 15 And I did want to speak about something with you
16 off of the docket at some point this morning, if possible.
17 THE COURT: Well, why don't you go talk to your 18 client about truth and stuff and then --
19 MR. MILLAN: No. No. It's about something
20 else. That's why I tried to see you this morning. 21 THE COURT: Can we do it right now off the
22 record or do you have to do it in -- 23 MR. MILLAN: Yes.
24 THE COURT: -- Chambers? Oh, okay.
25 Let's go off the record.
RICHARD E. ROBERTS, JR., CSR (830) 228-4634 217 Non-Jury Docket February 25, 2014 15
1 (Discussion off the record.) 2 THE COURT: So we will reset Weir for two weeks.
6 Plea docket. These three matters need to -- or 7 actually it's one matter that needs to be resolved today or it
9 2013-346, 347, 348, Abelardo Rodriguez, Jr. 10 MR. MILLAN: Your Honor, I'm going to speak to
11 my client. I'm pretty sure that's going to go to the trial
12 docket, but I'm going to try one last effort to try to come to 13 a resolution.
14 THE COURT: I'll mark you as conferring. Thank 15 you.
17 defense counsel here. If you want to go to the plea docket, 18 which is the last non-jury setting before going to the jury
19 docket, just let me know and it will happen. If you want to
20 go to the jury docket, let me know and it will happen. 21 If you want to stay on the pretrial docket,
22 you're going to need to approach, even if the D.A. is in 23 agreement, and let me know why the case is not moving forward.
RICHARD E. ROBERTS, JR., CSR (830) 228-4634 218 Non-Jury Docket February 25, 2014 16
1 present. Would you put us on the plea docket? 2 THE COURT: To the plea docket on 2012-181.
3 Thank you.
4 2013-216, Felix Castilleja. 5 MR. RODRIGUEZ: Present, Judge. We'll confer.
6 THE COURT: Thank you. In custody. 7 2013-349, Gerald Robinson. It says "Motion." I
8 don't know. It's stuck in the middle of my pretrials.
9 What are we doing here? 10 MR. RODRIGUEZ: The defendant is in custody.
11 It's a motion to sever counts.
12 THE COURT: Okay. Have you talked to the D.A.'s 13 office about it?
14 MR. RODRIGUEZ: I haven't had a chance this 15 morning yet.
16 THE COURT: Okay. Confer. I will mark you as
17 conferring and then we'll see what we need to do. 18 How are we standing, otherwise? Is it ready to
19 go to the jury docket?
20 MR. RODRIGUEZ: Otherwise on the 17th, Your 21 Honor, yes.
22 THE COURT: Oh, it's -- 23 MR. McCRARY: We're already on a jury docket.
24 THE COURT: And the 17th is my docket?
25 MR. McCRARY: Yes, sir.
RICHARD E. ROBERTS, JR., CSR (830) 228-4634 219 Non-Jury Docket February 25, 2014 17
1 THE COURT: Okay. Good. Thank you. 2 2013-358, John Paul Moreno.
3 THE DEFENDANT: Present.
4 THE COURT: And Chelkowski? Ms. Chelkowski? 5 Give her a call and prepare me a show cause if
6 you can't get ahold of her. 7 Mr. Moreno, do not leave until you're excused by
8 the Court.
9 2013-402, Wally Gracia. 10 MR. HUDSON: He's in custody, Your Honor. We
11 will confer. We'd like to go to the plea docket, if possible.
12 THE COURT: Which one, conferring or move it to 13 plea docket?
14 MR. HUDSON: If we could move it to the plea 15 docket.
16 THE COURT: To the plea docket. Thank you.
17 Obviously if you get something resolved today, let me know and 18 we'll take it up.
19 2013-409, Carl Stahmann?
20 THE DEFENDANT: Here. 21 THE COURT: Okay.
22 MR. MCCRARY: That's the same guy that was on 23 Page 1, Your Honor, earlier.
24 THE COURT: Yeah. I'm looking at that.
25 You've got Andrew Del Cueto as your attorney on
RICHARD E. ROBERTS, JR., CSR (830) 228-4634 220 Non-Jury Docket February 25, 2014 18
1 this case? 2 THE DEFENDANT: I don't believe so. I believe
3 it's Joseph Strickland.
4 THE COURT: Can I see that file, please? 5 THE CLERK: We were looking at that.
6 THE COURT: We've got a notice of -- why don't 7 you approach, please, sir.
8 (Mr. Stahmann approaches.)
9 THE COURT: We've got a Notice of Appearance of 10 retained counsel of Andrew del Cueto, C-U-E-T-O. And you're
11 telling me he's not your attorney?
12 THE DEFENDANT: It's the same office, possibly. 13 Because he -- I haven't had a chance to talk to him yet. I
14 can get all of this straightened out as soon as my attorney 15 gets here. They office in the Offices of Nicholas Lahood and
16 del Cueto.
17 THE COURT: Well, give them a call and find out 18 what's going on and get somebody here today or prepare me a
19 show cause for Mr. del Cueto. And get me a notice -- well,
20 get somebody here or I will have to order Mr. Stahmann to 21 retain counsel in the other case. But make some phone calls.
22 Don't leave. We will work on it. Thank you. 23 THE DEFENDANT: Okay. Thank you.
24 MR. McCRARY: Did he make bond on that
25 revocation?
RICHARD E. ROBERTS, JR., CSR (830) 228-4634 221 Non-Jury Docket February 25, 2014 19
1 THE CLERK: Yes, he bonded out. 2 THE COURT: Was it a regular bond or was it an
3 attorney bond?
4 MR. McCRARY: Just curious what it was set at. 5 THE CLERK: Yeah, it's through a bail bonds.
6 MR. MCCRARY: How much is it? 7 THE CLERK: $110,000. One is $100,000 and one
8 is $10,000.
9 THE COURT: 2013-435, Denis Chavez. 10 MR. CAMPOS: May I approach?
11 THE COURT: You may.
12 I'm not seeing your client stand. Is he here? 13 MR. CAMPOS: No, Judge.
14 THE COURT: Is that why you're approaching? 15 MR. CAMPOS: Yes.
16 THE COURT: Okay.
17 MR. CAMPOS: My client lives in Florida. He's 18 had a very serious medical procedure. He has not been
19 released to travel. I provided medicals to the State.
20 MS. KELLY: That's correct, Your Honor. 21 THE COURT: How long do you need to get him
22 here? 23 MR. CAMPOS: Judge, he's going to move back to
24 Texas in mid April, so I'd like a setting after April 15th.
25 THE COURT: Is that -- excuse me. Is that
RICHARD E. ROBERTS, JR., CSR (830) 228-4634 222 Non-Jury Docket February 25, 2014 20
4 MR. CAMPOS: Yes, sir. 5 THE COURT: The first setting after April 15th
9 2013-575, Jessica Lindig. 10 MS. ANCIRA: Your Honor, I got a phone call from
12 transportation to court. 13 THE COURT: Call her name three times, issue a
14 warrant, forfeit her bond, and get her transportation. 15 THE BAILIFF: Yes, Your Honor.
17 THE COURT: You may. You might want to let her 18 know that we've issued a warrant for her arrest. That may
20 MS. ANCIRA: I told her to expect that. 21 THE COURT: Okay.
RICHARD E. ROBERTS, JR., CSR (830) 228-4634 223 Non-Jury Docket February 25, 2014 21
1 clients or get a waiver of arraignment. Once we've done that 2 and you've said hello to the D.A.'s office, then we will reset
3 the matter for pretrial. I need to make sure everybody has
4 counsel on the arraignment docket. 5 2013-366, Chelsie Chenoweth.
6 THE DEFENDANT: Here. 7 THE COURT: I've got Christopher Graham as your
8 counsel?
9 THE DEFENDANT: Yeah. I haven't heard from him. 10 MS. VILLARREAL: I haven't heard from him,
11 either.
12 THE COURT: Give him a call and prepare a show 13 cause.
14 Was he retained or appointed, ma'am? 15 THE DEFENDANT: He's court appointed.
16 THE COURT: Okay. Go ahead and issue a show
17 cause if you can't get ahold of him or if he tells us he can't 18 get here. And make a note to remove him off of my
19 court-appointed --
20 MS. VILLARREAL: I think we did that. 21 THE COURT: Okay. Well, make a note for me to
22 double-check that. 23 MS. VILLARREAL: Okay.
24 MR. McCRARY: I think Steve did so.
25 THE COURT: I'm sorry?
RICHARD E. ROBERTS, JR., CSR (830) 228-4634 224 Non-Jury Docket February 25, 2014 22
1 MR. McCRARY: He did so. 2 THE COURT: Oh, he's already been removed?
3 MR. McCRARY: That's what I was told.
4 THE COURT: Okay. Well, now he will look at a 5 show cause.
6 2014-16, Rick Anthony Cruz. 7 MS. WIGINGTON: He's in custody, Your Honor, and
8 I'm conferring with the D.A.'s office. Because of the length
9 of time he's been in custody, I'm hoping that we can resolve 10 something today. If not, we'll advance it very quickly.
11 THE COURT: Is he -- it says "state jail." Is
12 it a state jail punishment or is it an enhanced? 13 MS. WIGINGTON: It's enhanced.
14 MR. MCCRARY: It's enhanced. 15 THE COURT: Oh, okay. I'll mark you as
16 conferring. At the very least, Ms. Wigington, get me a waiver
17 of arraignment. And as you said, if can we go ahead and get 18 it to the jury docket as soon as you've had time to prepare,
19 we will do that.
20 MS. WIGINGTON: Yes, Your Honor. 21 THE COURT: It's two cases. Also 2014-17.
22 2014-19, Bradley Whitten. 23 MR. SCHARMEN: Present with counsel, Judge.
24 We'll waive arraignment. We may have already filed a waiver.
25 I don't know.
RICHARD E. ROBERTS, JR., CSR (830) 228-4634 225 Non-Jury Docket February 25, 2014 23
1 THE CLERK: No, it's not. 2 MR. SCHARMEN: Yeah, Judge. We're going to
3 waive arraignment.
4 THE COURT: Is your client here? 5 MR. SCHARMEN: He's here.
6 THE COURT: Okay. Get me -- do we have a form 7 for --
8 THE CLERK: Yes, sir.
9 THE COURT: Get me a waiver of arraignment; say 10 hello to the D.A.'s office; get whatever they've got for you,
11 maybe including an offer; and we will reset it for pretrial.
12 If there's anything that the Court can do on your case today, 13 let me know. Otherwise, I will not call it again subject to
14 your -- 15 MR. SCHARMEN: That's all we can do today, Your
16 Honor.
17 THE COURT: Subject to the waiver of 18 arraignment, it will be reset for pretrial.
19 2014-27, Felix Castilleja.
20 MR. RODRIGUEZ: May we approach, Judge? 21 THE COURT: You may.
22 (Ms. Rankin and Mr. Rodriguez approach.) 23 MR. RODRIGUEZ: Good morning, Judge.
24 THE COURT: Are you retained or appointed?
25 MR. RODRIGUEZ: I'm appointed.
RICHARD E. ROBERTS, JR., CSR (830) 228-4634 226 Non-Jury Docket February 25, 2014 24
1 THE COURT: In both cases already? 2 MR. RODRIGUEZ: Yes. This is one of those where
3 we were waiting on the trial docket and my client didn't
4 appear. I was wondering if the State is going to subpoena me 5 or my office about whether I gave him notice and that kind of
6 thing. I know that has happened to my colleagues. 7 THE COURT: Yeah, it has happened out of this
8 office that we have to do a conflict and get a separate
9 attorney. 10 Is that the intent of the State?
11 MS. RANKIN: If we could confer. If he does not
12 accept an offer today, then that would be a conflict, yes. 13 THE COURT: Okay.
14 MR. RODRIGUEZ: We can do that, Judge. 15 THE COURT: Then we will just mark you as
16 conferring for the short term and I will call it again. So
17 don't leave until it's been reset by the Court. 18 MR. McCRARY: Kind of the deal with that from an
19 office standpoint is if we can work something out, we -- I've
20 pled cases like this before. But if it's going to be where 21 we're going to end up fighting, then yes he'll be a witness.
22 THE COURT: Okay. We should be able to resolve 23 that hopefully today.
24 MR. RODRIGUEZ: Okay. Thank you, Judge.
25 THE COURT: Thank you.
RICHARD E. ROBERTS, JR., CSR (830) 228-4634 227 Non-Jury Docket February 25, 2014 25
1 2014-39, Elizabeth Hernandez-Magana -- or 2 "Magana." How do you say that?
3 THE DEFENDANT: "Magana."
4 THE COURT: "Magana." Thank you. 5 Do you have an attorney, Ms. Magana?
6 THE DEFENDANT: No, sir, I don't. 7 THE COURT: When do you anticipate getting one?
8 THE DEFENDANT: I was working on that, Judge.
9 THE COURT: I'm sorry. Why don't you go ahead 10 and approach. I can't understand you. Old man's hearing.
11 (Ms. Magana approaches.)
12 THE DEFENDANT: I was working on that. I don't 13 have a lawyer.
14 THE COURT: Are you going to be able to get one 15 in a reasonable time?
16 THE DEFENDANT: I was -- yeah. I was, you know,
17 in the process of getting a lawyer. It's just the money 18 issue. But other than that, it's coming together. So --
19 THE COURT: If I were to give you 30 days, would
20 you have an attorney? 21 THE DEFENDANT: Oh, yeah, yeah, yeah. That will
22 be good. 23 THE COURT: Okay. What I'm going to do is my
24 clerk is going to prepare an order for you to retain counsel.
25 Read it carefully before you sign it. If you show up without
RICHARD E. ROBERTS, JR., CSR (830) 228-4634 228 Non-Jury Docket February 25, 2014 26
1 counsel and can't, under oath, explain all of the good-faith 2 efforts you've made to get counsel, you can be held in
3 contempt of court: up to 180 days in jail and a $500 fine.
4 If you don't show up on the date that's on 5 that -- and this will be the only notice you will receive, so
6 give it to the -- give a copy of it to the attorney you hire. 7 If you don't show up, it could be a third-degree
8 felony for failure to appear.
9 THE DEFENDANT: Okay. 10 THE COURT: Do you understand that?
11 THE DEFENDANT: Yes, sir, I do.
12 THE COURT: If you'll step over to the side and 13 read it carefully after you sign it. After you've signed it,
14 take a copy with you. 15 THE DEFENDANT: (Complies.)
16 THE COURT: Order to employ in 2013-377, Cynthia
17 Dawn Hart. 18 THE DEFENDANT: I still haven't been able to get
19 one.
20 THE COURT: If you will approach. 21 May I see that file, please?
22 THE CLERK: (Complies.) 23 (Ms. Hart approaches.)
24 THE COURT: Okay. Have you retained counsel?
25 THE DEFENDANT: Not yet, sir. I'm still trying
RICHARD E. ROBERTS, JR., CSR (830) 228-4634 229 Non-Jury Docket February 25, 2014 27
1 to come up with the funds to hire an attorney. 2 MS. KELLY: Your Honor, previously she had
3 Ms. Gillingham. Ms. Gillingham got her admitted to drug
4 court. She decided she didn't want to go to drug court and 5 Ms. Gillingham withdrew as counsel. And she was admonished on
6 the 2nd of January that she must have an attorney by today. 7 THE DEFENDANT: On the 2nd of January?
8 THE COURT: Yeah. That's when you were in front
9 of Judge Robison and you signed your order to employ. 10 THE DEFENDANT: I never -- okay. I never went
11 in front of Judge Robison. I -- I was given some forms by my
12 attorney and I signed them and then they sent me a notice that 13 we had court. And I went to court and they -- it was
14 postponed and I wasn't given a new date. 15 THE COURT: How much time do you need to get
16 counsel?
17 THE DEFENDANT: Can I have another 30 days, Your 18 Honor?
19 THE COURT: That's a long time.
20 THE DEFENDANT: Yes, sir. 21 THE COURT: Can you do it in two weeks?
22 THE DEFENDANT: I can try, yes, sir. 23 THE COURT: You need to get counsel.
24 THE DEFENDANT: Yes, sir, I know. I will do my
25 best to do it within two weeks.
RICHARD E. ROBERTS, JR., CSR (830) 228-4634 230 Non-Jury Docket February 25, 2014 28
1 MR. McCRARY: Considering the whole situation, 2 it might be a good idea to have her urine tested.
3 THE COURT: Would you pass a UA if I give it to
4 you? 5 THE DEFENDANT: Yes, sir.
6 THE COURT: I'm sorry? 7 THE DEFENDANT: Yes, sir.
8 THE COURT: Here's what I'm going to do. I'm
9 going to give you 30 days to get counsel. No more excuses. 10 I will ask probation to take her down and get a
11 UA. If she passes a UA, then we will reset this matter.
12 You come back in here and we will sign that when 13 you get back. If you don't pass a UA, then I will probably
14 put you in jail and we'll get a court-appointed attorney. 15 THE DEFENDANT: Yes, sir.
16 THE COURT: Okay. Don't lie to me. Are you
17 going to pass a UA? 18 THE DEFENDANT: Yes, sir.
19 THE COURT: Okay. Give her a UA. If he gets
20 the UA, I will give her 30 days to get counsel. If she 21 doesn't pass the UA, then we will put her in jail. And
22 obviously she can't make anymore money and I'll have her fill 23 out a court-appointed application. Thank you.
24 2013-614, Marilyn May Bray.
25 THE DEFENDANT: Here, sir.
RICHARD E. ROBERTS, JR., CSR (830) 228-4634 231 Non-Jury Docket February 25, 2014 29
1 THE COURT: Have you got an attorney, Ms. Bray? 2 THE DEFENDANT: No, sir. I was not able to
3 obtain counsel. I would like to get a court-appointed
4 attorney. 5 THE COURT: Approach.
6 Let me see that file. 7 THE CLERK: (Complies.)
8 (Ms. Bray approaches.)
9 THE COURT: You apparently made representations 10 back on the 14th of January that you could employ counsel. I
11 know I told you -- because my signature is on this and I
12 always do -- that you're going to have to explain to me under 13 oath all for the good-faith efforts. So if you will raise
14 your right hand. 15 (Defendant sworn.)
16 THE COURT: Tell me everything that you've done
17 to get counsel. 18 THE DEFENDANT: Yes, sir. I did go and speak
19 with an attorney. And I was planning to make -- he said it
20 would be $500 to get him started on it. And I had like a 21 family emergency and my new position -- I got a new job and I
22 started that last week. And I just couldn't come up with the 23 $500 to get us going. I apologize. And --
24 THE COURT: But you've got a new job now?
25 THE DEFENDANT: Yes, sir, I do. I do and I love
RICHARD E. ROBERTS, JR., CSR (830) 228-4634 232 Non-Jury Docket February 25, 2014 30
1 it. It's great. 2 THE COURT: So if I gave you 30 more days, you
3 could come up with it?
4 THE DEFENDANT: Yes, sir. 5 THE COURT: What people don't understand on
6 court-appointed attorney's is you have to pay them anyway. 7 It's part of the judgment at the end.
8 THE DEFENDANT: I will do that. I mean I -- I
9 do apologize. 10 THE COURT: I would rather you pick one you
11 like. And quit apologizing. We're just in court here.
12 THE DEFENDANT: Okay. 13 THE COURT: We're going to find out what's going
14 on and we're going to do what's just and fair. 15 Can you pass a UA if I gave one to you today?
16 THE DEFENDANT: Sure.
17 THE COURT: No meth since this case has been 18 pending?
19 THE DEFENDANT: Oh, no, sir. Absolutely not. I
20 never did that in the first place. It was an empty baggie. I 21 don't even know how it got --
22 THE COURT: Shush. 23 THE DEFENDANT: Okay. I'm sorry.
24 THE COURT: Don't talk about your case.
25 THE DEFENDANT: I'm sorry. I'm sorry.
RICHARD E. ROBERTS, JR., CSR (830) 228-4634 233 Non-Jury Docket February 25, 2014 31
1 THE COURT: Don't talk about your case. 2 THE DEFENDANT: No, everything is fine, sir. I
4 THE COURT: Reset. Order to retain, 30 days. 5 Read it carefully before you sign it. If you come in again
6 without counsel, you're going to have to come up here and tell 7 me again why your new job isn't paying you or whatever that
8 is. You've told me all you need is $500. You've got 30 days,
9 which should be two paychecks. You should be able to come up 10 with $500 to retain your own counsel.
12 THE COURT: Step over to the side. Make sure 13 you take a copy with you after you've read it and signed it.
14 THE DEFENDANT: Yes, sir. 15 THE COURT: Motion to Substitute: 2012-486,
17 May I see that file, please. 2012-486. 18 THE CLERK: (Complies.)
20 MR. ACEVEDO: No, Your Honor. 21 THE COURT: Did you tell him to be here?
22 MR. ACEVEDO: I just called him, Your Honor, and 23 apparently he was told that he had a setting like in March:
24 March 17th and March 11th. He's on full house arrest, Your
25 Honor. And what I'm thinking, Your Honor, is that they
RICHARD E. ROBERTS, JR., CSR (830) 228-4634 234 Non-Jury Docket February 25, 2014 32
1 didn't -- since the order wasn't granted or the lawyer didn't 2 follow up on it, he didn't get notice of this hearing. And so
3 I tried to call his office right now and there's no answer.
4 THE COURT: So new counsel isn't here, either? 5 MR. ACEVEDO: No, Your Honor.
6 THE COURT: Here's what I will do in this case 7 unless the State has any objections. I'm going to grant the
8 Motion to Substitute. It's signed by Mr. Vela. And I'll
9 reset this matter in two weeks. So we'll get notice out. 10 I'm going to ask you, as an officer of the
11 Court, to call Mr. Vela and tell him he's got a setting coming
12 in approximately two weeks. 13 MR. ACEVEDO: Yes, Your Honor.
14 THE COURT: If he hadn't -- he needs to call up 15 here and find out when that's -- well, let's just set it on my
16 docket.
17 What day is my next docket? 18 THE CLERK: March 13th.
19 THE COURT: It's going to be reset on the 13th.
20 Mr. Vela needs to be here or there will be a show cause order 21 issued.
22 MR. ACEVEDO: March 13th, Your Honor? 23 THE COURT: March 13th.
24 MR. McCRARY: Where is the defendant at right
25 now?
RICHARD E. ROBERTS, JR., CSR (830) 228-4634 235 Non-Jury Docket February 25, 2014 33
1 MR. ACEVEDO: He's in Bexar County at home. 2 He's got full house arrest. He's got full house arrest here,
3 Your Honor, and he has full house arrest in Bexar County.
4 THE COURT: Let's get Mr. Vela here in two 5 weeks. Let him know it's coming on the 13th. We will send
6 notice. There will be no excuses. I expect his client to be 7 here or a really good explanation on why he's not. Okay?
8 MR. ACEVEDO: Your Honor, is it on the
9 March 11th docket? Because he said he got something in the 10 mail.
11 THE COURT: Is it already on the March 11th
12 docket? 13 THE CLERK: March 17th.
14 MR. ACEVEDO: March 17th. 15 THE CLERK: It's for a jury trial.
16 THE COURT: Well, that pretrial is on the 13th
17 so he has to be here either way. 18 Make sure Mr. Vela knows that. Send new notice
19 to Mr. Vela for both jury and pretrial and circle it like you
20 do and highlight. Call him and tell him if he's not here on 21 that Thursday, I will issue a show cause.
22 MR. ACEVEDO: Thank you, Judge. 23 MR. McCRARY: Does he know he's substituting in
24 on a case that's set for trial?
25 MR. ACEVEDO: Yes.
RICHARD E. ROBERTS, JR., CSR (830) 228-4634 236 Non-Jury Docket February 25, 2014 34
1 MR. McCRARY: He's not going to try to weasel 2 out of trial based on substituting in at the last minute?
3 THE COURT: Y'all can have that discussion.
4 I've granted the motion. Let me see the docket 5 sheet.
6 THE CLERK: (Complies.) 7 THE COURT: And a writ in 2012-559, Carolyn
8 Carnes.
9 MR. RODRIGUEZ: We will confer on that. 10 THE COURT: Thank you. Is that, what, a 90-day
11 writ or a bond writ or what?
12 MR. RODRIGUEZ: It's -- 13 MR. McCRARY: It's none of the above.
14 MR. RODRIGUEZ: It's a 90-day writ subsequent to 15 bond conditions previously.
16 THE COURT: So it's a bond conditions writ? I
17 just always like to know what they are. 18 MR. McCRARY: She violated the conditions of
19 bond.
20 THE COURT: Oh, okay. 21 Okay. Anybody here whose name I did not call or
22 came in late? 23 THE BAILIFF: Mr. Graham is here, Your Honor.
24 THE COURT: Mr. who?
25 MR. GRAHAM: Chelsie Chenoweth. It was a case
RICHARD E. ROBERTS, JR., CSR (830) 228-4634 237 Non-Jury Docket February 25, 2014 35
1 that was supposed to be set a week or two ago but, for 2 whatever reason, it wasn't on the list and so now I'm back on
3 it.
4 THE COURT: For arraignment. I need you to say 5 hello to the D.A.'s office. If there's nothing we can do
6 today, then get me a waiver of arraignment or bring your 7 client up and let me arraign her.
8 MR. GRAHAM: Sounds good.
9 THE COURT: And it will be reset for pretrial 10 subject to that waiver of arraignment.
11 ATTORNEY ATTORNEY: Sounds good. Thank you very
12 much, Your Honor. 13 THE COURT: We have a form for that if you're
14 not carrying one with you. 15 MR. MCCRARY: May we approach?
16 MR. MILLAN: Your Honor, on Abelardo Rodriguez,
17 we want to move him to the trial docket. 18 THE COURT: 2013-346, 347 and 348 to the trial
19 docket.
20 MR. MILLAN: Your Honor, I have no further 21 business before this Court. May I be excused?
22 THE COURT: You may. Thank you. 23 I'm looking for Mr. Darwin, Mr. Dwyer,
24 Mr. Strickland, Ms. Chelkowski, del Cueto, Ms. Jessica Marie
25 Lindig.
RICHARD E. ROBERTS, JR., CSR (830) 228-4634 238 Non-Jury Docket February 25, 2014 36
1 None of those people are here, so I will proceed 2 with the punishment in 2013-446, Jenesha Martinez.
3 MR. MCCRARY: On the Brian Wilson case, she
4 actually came back and told me he's going to plea on it. 5 THE COURT: Brian Wilson.
6 MR. MCCRARY: You marked it off. It was one of 7 the ones on Page 2.
8 THE COURT: Oh, going to come back and plead
9 true to the allegations? 10 MR. MCCRARY: I think he's going to plead and
11 take the deal.
12 THE COURT: Oh, okay. 13 (Discussion off the record.)
14 (Open Court, Defendant present.) 15 THE COURT: Okay. Ms. Martinez has pled guilty:
16 two years in a state jail facility, probated for four years;
17 $1,500 fine; $140 in restitution; 12.45 two cases -- two 18 misdemeanor cases; court costs due at the time of sentencing,
19 but you've been in jail so we will take care of that as soon
20 as you can; standard stuff; DWI school. 21 MS. JONES: Actually it's drug education, Judge.
22 THE COURT: I'm sorry. Drug -- it's DWI 23 school/drug school, a women's support group.
24 I'm going to approve the plea, but I've got two
25 comments. Number one is you have to get a job. If you don't
RICHARD E. ROBERTS, JR., CSR (830) 228-4634 239 Non-Jury Docket February 25, 2014 37
1 get a job, you're going to be back in here and then back in 2 the state jail facility.
4 department. I want you to get her some help on getting child 5 support from the father of her children.
6 PROBATION: Okay. 7 THE COURT: It says two children. You have two
9 THE DEFENDANT: One. 10 MS. JONES: She has one and she's pregnant.
12 that's going to be a condition of probation is that you 13 actively seek child support from the fathers of these
14 children. If you fail to do that and give them a pass, you go 15 to jail. Do you understand?
17 THE COURT: My staff is very good at getting the 18 attorney general's attention on these kind of the cases.
20 years in a state jail facility, probated for four years; 21 $1,500 fine; $140 in restitution; court costs; Crime Stopper's
22 fee to be paid as soon as she can, accelerated; 200 hours of 23 community service restitution; and follow all of the
RICHARD E. ROBERTS, JR., CSR (830) 228-4634 240 Non-Jury Docket February 25, 2014 38
1 Temple and I've explained to her -- and I believe the 2 probation department is intending to transfer this up. I told
3 her that she needs to stay in touch with our department on a
4 weekly basis to make sure that that is accepted so it doesn't 5 get lost in transit.
6 THE COURT: The first thing is -- does she have 7 any other holds on her?
8 MS. JONES: No, sir.
9 THE COURT: As soon as you get out of jail, the 10 first place you go is to my probation department.
11 THE DEFENDANT: Yes, sir.
12 THE COURT: And they will explain all of that to 13 you on how to report until it gets transferred and everything
14 that goes along there. 15 THE DEFENDANT: Yes, sir.
16 THE COURT: But I think what's important is
17 regardless of what they do in Temple if my people find out you 18 don't have a job, if my people find out you're not seeking
19 child support, then my people will bring you back here and you
20 will end up in my jail until we decide how to deal with you. 21 Do you understand that?
22 THE DEFENDANT: Yes, sir. 23 THE COURT: You're under my thumb. It's not
24 Temple's. It's mine. And we're a lot harsher than they are
25 in Temple, Texas.
RICHARD E. ROBERTS, JR., CSR (830) 228-4634 241 Non-Jury Docket February 25, 2014 39
1 THE DEFENDANT: Yes, sir. 2 THE COURT: Okay. Thank you.
3 MS. JONES: Thanks, Judge.
4 THE COURT: Thank you. 5 MS. JONES: May I be excused?
6 THE COURT: You may. 7 The waiver of arraignment in 2014-19, Bradley
8 Whitten, is approved. Reset for pretrial.
9 MR. SCHARMEN: Are we excused, Judge? 10 THE COURT: Yes. Thank you.
11 MR. SCHARMEN: Thank you, Judge.
12 THE COURT: Any announcements? 13 MS. BASCON: Your Honor, on the civil matter,
14 2013-1144, we've reached an agreement. 15 THE COURT: Yeah. You may approach.
16 (Ms. Bascon and Mr. Fahle approach.)
17 THE COURT: Okay. What is the agreement? 18 MR. FAHLE: Your Honor, we --
19 THE COURT: I assume you want to dictate it into
20 the record. 21 MR. FAHLE: Yes, sir.
22 MS. BASCON: I think that's a good idea. 23 THE COURT: Okay.
24 MR. FAHLE: We have agreed to reset the
25 Plaintiff's Motion for Summary Judgment for April 24th, 2014
RICHARD E. ROBERTS, JR., CSR (830) 228-4634 242 Non-Jury Docket February 25, 2014 40
1 at 9:00 a.m. 2 THE COURT: Is that my docket?
3 MS. BASCON: Yes, sir.
4 MR. FAHLE: Yes, sir, Your Honor. 5 The Defendants agree to file and serve their
6 Response to Motion for Summary Judgment by April 24th, 2014 7 with receipt of the response to Plaintiff's counsel on the
8 14th. And we've agreed that we will do that by fax and by
9 electronic filing. That way they will have double notice. 10 THE COURT: Okay.
11 MR. FAHLE: Plaintiffs further agree that
12 Plaintiffs -- the parties further agree that Plaintiffs are 13 not required to answer outstanding discovery for Plaintiff
14 within 30 days (sic). 15 MS. BASCON: "Until."
16 MR. FAHLE: Until 30 days following a ruling by
17 the Court on the Motion for Summary Judgment should the Court 18 deny the Motion for Summary Judgment.
19 MS. BASCON: And that discovery is the
20 outstanding Request for Production and Request for Disclosure 21 and Interrogatories to all of the Plaintiffs.
22 THE COURT: Okay. 23 MR. FAHLE: And that agreement -- that paragraph
24 does not address the Defendants' Request for Abstract.
25 MS. BASCON: And I will separately respond to
RICHARD E. ROBERTS, JR., CSR (830) 228-4634 243 Non-Jury Docket February 25, 2014 41
1 that within a timely matter. 2 THE COURT: And that's the agreement of both
3 parties?
4 MS. BASCON: Yes, Your Honor. 5 THE COURT: Are you going to put it in writing
6 or are you going to rely on dictating it into the record. 7 MR. FAHLE: We've got it in writing, Your Honor.
8 And we will sign this as a Rule 11 Agreement.
9 And there is one other. Defendants agree to 10 provide Plaintiffs' counsel contact information they have for
11 Arthur Cronenberg (phonetic) who is a potential witness in
12 this case by -- can we have one second, Your Honor? 13 THE COURT: You may.
14 (Sotto voce discussion between attorneys.) 15 MR. FAHLE: By March 6th, Your Honor.
17 MR. FAHLE: And one last thing. And we have not 18 discussed this, but let me just clarify. This says "Should
19 the Court deny the Motion for Summary Judgment, then they
20 will -- then they will provide discovery." Even if the Court 21 grants the Motion for Summary Judgment, we contend that that
22 is not dispositive of the entire case. This is actually a 23 Motion for Partial Summary Judgment.
24 MS. BASCON: I would agree that there would
25 still be an issue as to how much money I would be entitled to.
RICHARD E. ROBERTS, JR., CSR (830) 228-4634 244 Non-Jury Docket February 25, 2014 42
1 (Laughter.) 2 MS. BASCON: If he grants the Motion for Summary
3 Judgment, I don't see the purpose of needing to answer the
4 discovery. That was our agreement. 5 MR. FAHLE: Well, what I'm -- what I'm saying is
6 if -- if he grants the Motion for Summary Judgment but that 7 doesn't dispose of all of the issues in the case --
8 THE COURT: Are you still reserving the right to
9 object to that discovery within 30 days? 10 MS. BASCON: I filed objections already, Your
12 THE COURT: Well, then we can -- if she doesn't 13 provide it in 30 days, we can set it for a hearing to see
14 whether it's necessary or not. 15 MS. BASCON: Okay.
16 MR. FAHLE: Thank you, Your Honor.
17 THE COURT: Okay. 18 MS. BASCON: Sure.
19 THE COURT: And that will be part of the Rule
20 11. And I don't mean to dictate terms. Are y'all in 21 agreement with that?
22 MS. BASCON: That's fine. 23 MR. FAHLE: Yes, Your Honor.
24 THE COURT: Okay. Then that is the Rule 11.
25 It's approved by the Court. You've represented you're going
RICHARD E. ROBERTS, JR., CSR (830) 228-4634 245 Non-Jury Docket February 25, 2014 43
1 to put it in writing. You may do so. But the record is the 2 record. And make sure you've talked to Savanah to get on my
3 April 24th docket.
4 MS. BASCON: We have done that already. 5 THE COURT: Okay. Thank you.
6 MS. BASCON: Thanks, Your Honor. May we be 7 excused?
8 THE COURT: You may.
9 MR. FAHLE: Thank you, Your Honor. 10 THE COURT: Okay. Any announcements? Anybody
11 that came in late? There being none, we will take a short
12 break. We will contact those attorneys that I had said we 13 were going to contact.
14 And I will ask my staff or bailiffs to let me 15 know if we have anything ready and we'll come out and do it
16 all again.
17 THE BAILIFF: Yes, Your Honor. 18 THE COURT: Short recess.
19 (Recess.)
20 THE COURT: Okay. A little housekeeping. Off 21 of my civil docket, the only matter was the Dove matter. And
22 they did call with an agreed pass, so the civil docket is 23 complete.
24 Criminal docket. Let me just run through and
25 see what we've got.
RICHARD E. ROBERTS, JR., CSR (830) 228-4634 246 Non-Jury Docket February 25, 2014 44
1 Mr. Darwin here yet? 2 THE BAILIFF: No, Your Honor.
3 THE COURT: Mr. Dwyer here yet?
4 MR. DWYER: I'm here, Your Honor. We're ready. 5 THE COURT: Thank you.
6 Mr. Strickland here yet? 7 MR. DEL CUETO: I'm here for Mr. Strickland.
8 I'm Andrew del Cueto, Your Honor.
9 THE COURT: If you will approach. 10 (Mr. del Cueto approaches.)
11 THE COURT: It's my understanding that you
12 represent Mr. Stahmann in the underlying offense. 13 MR. DEL CUETO: Yes, Your Honor. I believe my
14 office will be faxing a motion of retained counsel for the MTR 15 as well.
16 THE COURT: Well, can you not just hand write
17 something that says you will be representing him on that so 18 we'll --
19 MR. DEL CUETO: Sure, Judge. If I get a piece
20 of paper I sure can. 21 THE COURT: Are you going to do anything on
22 these cases today? 23 MR. DEL CUETO: I can't, Judge. This is the
24 first day I got the police reports and I believe there's a DVD
25 or video.
RICHARD E. ROBERTS, JR., CSR (830) 228-4634 247 Non-Jury Docket February 25, 2014 45
1 THE COURT: What I'm going to do is subject to 2 your appearance today, I will reset 2011-31, the motion to
3 adjudicate, and 2013-409 to the -- that will be on the
4 pretrial docket. It will be on my docket because of the 5 motion to adjudicate.
6 Get me an appearance of counsel, handwritten, 7 with bar number, phone number, et cetera, so we can get you
8 into the computer and you will get resets on potential.
9 MR. DEL CUETO: Thank you, Your Honor. 10 THE COURT: Thank you.
11 MR. DEL CUETO: After that, may I be excused?
12 THE COURT: You may. 13 MR. DEL CUETO: Thank you, Judge.
14 THE COURT: Martinez is ready; is that correct? 15 MR. MCCRARY: Yes, sir. And that's the hearing.
16 THE COURT: Wilson. Are we going to do anything
17 additional on Brian Wilson? 18 MS. MENDEZ: Yes, Your Honor. My client has had
19 a change of heart and I believe we will enter a plea.
20 THE COURT: Okay. And do a recommended -- 21 MR. MCCRARY: Yes, sir.
22 MS. MENDEZ: Yes, sir. 23 THE COURT: Is it ready?
24 MR. McCRARY: Yes, sir.
25 THE COURT: Okay. Thank you.
RICHARD E. ROBERTS, JR., CSR (830) 228-4634 248 Non-Jury Docket February 25, 2014 46
1 Go ahead and bring out Brian Wilson. I will 2 take that up first.
3 Then Castilleja, Mr. Rodriguez.
4 MR. RODRIGUEZ: Judge, we came to an agreement 5 on that matter, so it will be a plea today.
6 THE COURT: Plea today. Is it paper ready yet? 7 MR. RODRIGUEZ: Yes, sir.
8 THE COURT: Thank you. And that's both cases
9 will be resolved one way or the other? 10 MR. RODRIGUEZ: Yes, sir.
12 Robinson? 13 MR. COLLINS: It's ready, Your Honor.
14 THE COURT: Thank you. 15 Did Ms. Chelkowski get here?
16 MR. McCRARY: Yes, sir. I saw her.
17 THE COURT: Okay. So she's conferring 18 somewhere?
19 MR. McCRARY: I don't know where she went, but I
20 talked to her. 21 THE CLERK: Yes, sir.
22 THE BAILIFF: She's in the back, Your Honor. 23 THE COURT: Okay. That's with Mr. Moreno.
24 And then Cruz, Ms. Wigington?
25 MR. McCRARY: It's going to be a plea. She has
RICHARD E. ROBERTS, JR., CSR (830) 228-4634 249 Non-Jury Docket February 25, 2014 47
1 the paperwork. I assume she's in the back talking to him. 2 THE COURT: Thank you.
3 Did Jessica Marie Lindig ever get here?
4 THE BAILIFF: No, Your Honor. 5 THE COURT: Has that name been called?
6 THE BAILIFF: Yes, it has, Your Honor, at 7 10:13 a.m., three times. There was no response.
8 THE COURT: Issue a warrant, forfeit the bond.
9 And I will take judicial notice of your certification and 10 announcement in open court.
11 It's my understanding that Ms. Hart failed her
12 UA. Has she been given an application for court-appointed 13 attorney?
14 THE CLERK: No, sir. 15 THE COURT: Somebody give her an application for
16 court-appointed attorney. She's not going to be able to make
17 any money under those circumstances. And I will look at that 18 and get her counsel. We will reset that matter for pretrial
19 after I have reviewed and appointed her counsel.
20 And last but not least is Carolyn Carnes. 21 MR. RODRIGUEZ: Judge, I've conferred with the
22 State. We have agreed to reset that matter to March 13th, 23 which I think is your next document.
24 THE COURT: Reset to March 13th. Thank you.
25 Okay. Brian Wilson 201-1631.
RICHARD E. ROBERTS, JR., CSR (830) 228-4634 250 Non-Jury Docket February 25, 2014 48
1 MR. McCRARY: You skipped one case in there 2 somewhere.
3 THE COURT: Oh, I did? What did I skip?
4 MR. GRAHAM: Chenoweth, Your Honor. Chelsie 5 Chenoweth is a plea. The paperwork is ready on that one.
6 THE COURT: Oh, I'm sorry. I did. I thought we 7 were just going to do a waiver of arraignment. But it is
8 ready and we're going to resolve that today?
9 MR. GRAHAM: That's correct, Your Honor. 10 THE COURT: Thank you.
11 Raise your right hand.
12 (Defendant present and sworn.) 13 THE COURT: Okay. And you are Brian Gerard
14 Wilson? 15 THE DEFENDANT: Correct, sir.
16 THE COURT: The first document we're going to go
17 over is the Trial Court Certification Regarding Defendant's 18 Right to Appeal. Your signature on this document?
19 THE DEFENDANT: Correct, sir.
20 THE COURT: And you have marked that you have 21 waived your right to appeal. You do understand in marking
22 that that, first of all, if you plead true to any of the 23 allegations in the State's motion and I punish you within the
24 appropriate range of punishment, you will have waived your
25 rights to appeal?
RICHARD E. ROBERTS, JR., CSR (830) 228-4634 251 Non-Jury Docket February 25, 2014 49
1 THE DEFENDANT: Correct, sir. 2 THE COURT: And you also understand that there
3 may be a recommendation from the State, but I'm not obligated
4 to follow that recommendation. Do you understand that? 5 THE DEFENDANT: Yes, sir.
6 THE COURT: Okay. I'm looking at a motion to 7 revoke, dated November 22nd. Is that the active motion?
8 MS. MENDEZ: Yes.
9 MR. McCRARY: November 22nd, 2013. Yes, sir, 10 Your Honor.
11 THE COURT: Do you waive -- well, first of all
12 I'm going to approve the Trial Court Certification Regarding 13 Rights to Appeal. I would ask one thing.
14 May I write that you are currently, as your 15 address, the Comal County jail?
16 THE DEFENDANT: That's correct, sir.
17 THE COURT: I will give your counsel and 18 counsel's copy to counsel.
19 Generally speaking, you are currently on
20 supervision for failure to comply, five years. That's a third 21 degree felony; is that correct?
22 MR. McCRARY: State jail. 23 THE COURT: State jail. So we've got up to two
24 years in a state jail and everything less than that.
25 The allegations are, generally speaking, moved
RICHARD E. ROBERTS, JR., CSR (830) 228-4634 252 Non-Jury Docket February 25, 2014 50
1 and failed to report to the San Antonio Police Department 2 within the statutory time. You've apparently moved twice and
3 didn't report. So the first four are reporting violations --
4 or registration violations? 5 THE DEFENDANT: Yes, sir.
6 THE COURT: And then intentionally and knowingly 7 threatened Chancy Wilson with imminent bodily injury; and then
8 failed to report to probation; change of residence and didn't
9 give notice as required, two allegations of that; failure to 10 pay; failure to pay; and failure to complete CSR hours.
11 How do you plead to the allegations in the
12 State's motion, true or not true? 13 THE DEFENDANT: Well, as I said before, I
14 wouldn't refute the statement, sir. I can't -- 15 THE REPORTER: I'm sorry. Repeat that.
16 THE DEFENDANT: I said I wouldn't refute the
17 statements, sir. 18 THE COURT: Are they true or not true? If you
19 say false or not true, then we'll have a hearing and the State
20 could prove them up. And then we can proceed at that point 21 and obviously any recommendation --
22 THE DEFENDANT: No, sir. 23 THE COURT: -- I'm sure will be off the table.
24 THE DEFENDANT: No, sir. No, sir. No, sir.
25 No, sir.
RICHARD E. ROBERTS, JR., CSR (830) 228-4634 253 Non-Jury Docket February 25, 2014 51
1 THE COURT: True or not true? 2 THE DEFENDANT: All true, sir.
4 in exchange for the plea of true? 5 MR. McCRARY: Basically that he get 18 months
6 state jail and a $500 fine. 7 THE COURT: Was that the original fine?
9 quite honestly. I'm not making him any kind of deal other 10 than it won't be stacked.
12 probation and sentence you to 18 months in a state jail 13 facility and give you credit for time served as allowed under
14 the rules and laws of this state. 15 THE DEFENDANT: Yes, sir.
17 restitution, et cetera, will be remain due and owing. 18 Good luck, sir.
20 THE DEFENDANT: Remain due and owing, sir? 21 Remain -- I'm confused, sir. I don't want to be confused,
RICHARD E. ROBERTS, JR., CSR (830) 228-4634 254 Non-Jury Docket February 25, 2014 52
1 THE COURT: -- there was a fine. 2 THE DEFENDANT: Yes, sir.
3 THE COURT: There was court costs.
4 THE DEFENDANT: Yes, sir. 5 THE COURT: There may have been restitution.
6 THE DEFENDANT: Yes, sir. 7 THE COURT: I don't know.
8 THE DEFENDANT: Yes, sir.
9 THE COURT: And if you haven't paid them -- 10 THE DEFENDANT: Yes, sir.
11 THE COURT: -- they will remain due and owing.
12 You've still got to pay them. 13 THE DEFENDANT: Yes, sir.
14 THE COURT: Okay. Thank you. 15 THE DEFENDANT: Yes, sir.
16 THE COURT: Next will be 2013-282, Camille
17 Sauls. 18 The next custody case is Jerryl Robinson. If
19 you will get him ready.
20 (Defendant present.) 21 THE COURT: Okay. Ms. Sauls, it's a four-year
22 deferred adjudication; a $1,000 fine; $140 restitution; 200 23 hours community service restitution.
24 Did you bring your court costs today?
RICHARD E. ROBERTS, JR., CSR (830) 228-4634 255 Non-Jury Docket February 25, 2014 53
1 THE COURT: Let's get those paid. 2 The conditions of probation recommended are
3 fairly standard for this kind of offense, including intensive
4 outpatient. Any further discussion? 5 Then we'll defer adjudication for four years.
6 Pay your court costs. I'll assess $140 restitution, a $1,000 7 fine, 200 hours community service restitution, and follow the
8 recommendations in the supervision plan as the conditions of
9 probation. 10 Don't leave until you've been excused by the
11 probation department.
12 Thank you, counsel. 13 MR. DWYER: Thank you.
14 THE COURT: Now you can go back to campaigning. 15 MR. DWYER: Yes, sir.
16 MS. WIGINGTON: Your Honor, I wanted to let you
17 know we also have Rick Anthony Cruz that's going to be signing 18 here and he will be ready. He's in custody as well.
19 THE COURT: Is it paper ready now?
20 MS. WIGINGTON: I'm letting them have it to take 21 it to him to sign now.
22 THE COURT: Thank you. I will mark it as ready 23 under those circumstances.
24 (Defendant present.)
25 THE COURT: Mr. Robinson?
RICHARD E. ROBERTS, JR., CSR (830) 228-4634 256 Non-Jury Docket February 25, 2014 54
1 THE DEFENDANT: Yes, sir. 2 THE COURT: Okay.
3 (Pause.)
4 THE COURT: Okay. It's your motion, Counsel. I 5 have read it. Tell me why I should sever these counts.
6 MR. COLLINS: Your Honor, what we have here is 7 Mr. Robinson is charged under indictment in this case on two
8 counts. Count 1 is theft greater than $15,000 (sic), less
9 than $20,000. 10 THE COURT: It's $1,500. But go ahead.
11 MR. COLLINS: $1,500 and less than $20,000,
12 which is a state jail enhanced to a second degree. Count Two 13 he's charged with theft less than $1,500 with two or more
14 prior theft convictions. That's enhanced as well, so it's a 15 second degree. So both are second degrees.
16 What it is -- the issue we have here is count --
17 it's two value differences. What we're arguing is that 18 Count 1 is greater than $1,500, less than $20,000; and Count 2
19 is less than $1,500. That's two separate charges.
20 THE COURT: On the same day with the same 21 victim?
22 MR. COLLINS: Same date. Same victim. 23 MR. McCRARY: The same offense.
24 MR. COLLINS: The same items, but two different
25 values are being charged. We've got a box of 36 cartons of
RICHARD E. ROBERTS, JR., CSR (830) 228-4634 257 Non-Jury Docket February 25, 2014 55
1 cigarettes apparently it's -- supposedly it's greater than 2 $1,500, less than $20,000; and at the same time it's less than
3 $1,500. We have two counts. Two charges.
4 THE COURT: It's the same cigarettes? 5 MR. McCRARY: The same cigarettes.
6 THE COURT: Doesn't the State have to elect 7 which one -- what the value is?
8 MR. McCRARY: No, sir, I don't.
9 THE COURT: You can go -- 10 MR. MCCRARY: I can charge in the alternative
11 and get him either way.
12 MR. COLLINS: And again we go back to: If he's 13 charged in the alternative, Judge, we're saying that there's
14 two -- two counts are two separate offenses and that's why 15 we're asking to sever under 3.04, Texas Penal Code.
16 MR. McCRARY: And therein lies the gravamen of
17 this. And, quite honestly, there's benefits to me either, so 18 I'm really not taking a real strong position either way.
19 Because it's one of two things: Either they're separate
20 offenses, which if they are, under 3.04 he's entitled to 21 sever. That's what the Code says.
22 If they're alternative means of committing one 23 offense, then he's not entitled to sever them. And I don't
24 have to elect. I don't have to do anything. The jury will be
25 told, you know: If you believe this one or this one, you find
RICHARD E. ROBERTS, JR., CSR (830) 228-4634 258 Non-Jury Docket February 25, 2014 56
1 him guilty. It's alternative means of committing a single 2 crime.
3 So basically what you have is a unit of
4 prosecution case, Your Honor. And, quite honestly, I have 5 done the research. There is not a case out there that says
6 whether theft with two priors is a separate statutory offense 7 from theft over $1,500 if you could break it down.
8 However what there is is a couple of Court of
9 Criminal Appeals' cases that discuss the gravamen of theft. 10 And it's kind of what you were hitting upon. They said it's a
11 taking of a particular item of property from a particular
12 person. So if you have like say a Jeep stolen and there's two 13 owners -- let's say we're joint owners of it. It's one theft.
14 They've actually addressed that. 15 On the other hand if you steal two Jeeps, your
16 jeep and my jeep, it's two thefts. You can aggregate, but the
17 State doesn't have to. They've specifically addressed that. 18 They've said the State could break that into two offenses. So
19 for each separate item with a different owner for that item,
20 you can break it down. 21 Looking at those cases, based on the way they've
22 written them, it seems to indicate the gravamen and the way it 23 is with the one item and one owner you probably only have one
24 offense. There is an argument to be made though there's
25 different elements because one requires two priors and the
RICHARD E. ROBERTS, JR., CSR (830) 228-4634 259 Non-Jury Docket February 25, 2014 57
1 other one has a different value. 2 The benefit to me if they're basically
3 alternative means of committing the same offense is I get to
4 go at him two ways at once. On the other hand if he's right 5 and he's entitled to sever them and they're separate offenses,
6 I get to try him twice and try to get 20 years stacked on him 7 for two different offenses. So that's why I'm not
9 But at the end of the day the question is what 10 the law requires. And this case out of Amarillo specifically
11 addresses that if they're not separate offenses, he's not
12 entitled to sever. It cites back to a Court of Criminal 13 Appeals case. And then these cases, Your Honor, all out of --
14 well, there's one out of El Paso and two or three out of the 15 Court of Criminal Appeals that all talk about what the
17 My main concern, whichever way you go, is that 18 it's right. Because if he's right and they're severed and
19 he's taking this position and I try him on one, even if he
20 wins and I get a not guilty I get to turn around and try him 21 on the second if they're separate offenses. So --
22 MR. COLLINS: And, Your Honor, we also have the 23 issue too that for Count 2 you have to show the two or more
24 prior offenses, which then we're going to run into an issue as
RICHARD E. ROBERTS, JR., CSR (830) 228-4634 260 Non-Jury Docket February 25, 2014 58
1 evidence that could come into play with Count 1, which would 2 be inadmissible.
3 THE COURT: And hard to fix with an instruction.
4 Well, logic says that it's one act, but I think 5 your last argument makes the point. I don't know how you try
6 both of them when you have that separate element. One is a 7 prior convictions 404(b) problem and, one, it's an element in
8 the case. And I don't know how you separate that.
9 MR. COLLINS: That bell is hard to be unrung, 10 Your Honor, once it has.
11 THE COURT: No.
12 MR. McCRARY: But that is ultimately not the 13 question. The question is unit of prosecution. Is it one
14 offense or two? All this bell unrung stuff has really nothing 15 to do with it.
16 THE COURT: Well, except it's separate elements
17 as you stated in your argument. It's separate elements and 18 therefore it can be two.
19 MR. McCRARY: I would just ask the Court to look
20 at the case law because, when I first did it, I was going at 21 it as if they were going to be separate offense. That was
22 kind of my thought. I would have two different offenses on 23 him because of the separate elements. Reading the case law
24 I'm not sure that's the case.
25 But it needs to be right either way because if
RICHARD E. ROBERTS, JR., CSR (830) 228-4634 261 Non-Jury Docket February 25, 2014 59
1 he's going to take this position, I'm telling him straight up 2 he's going to get tried twice. You can't have it both ways.
3 You can't say they're separate offenses and make me pick one
4 and then me not get my shot at the second one. 5 THE COURT: I understand.
6 And you understand that, too, Counsel? 7 MR. COLLINS: I do, Your Honor. And we're
8 looking at, too, the value as one thing and then we're going
9 to try a second one and now we're coming back and saying the 10 value is separate. It's one or the other. Again, we're back
12 THE COURT: Well, let me read the cases. 13 Obviously I want to be right, too. I don't want to try it
16 Appeals' case, in particular. And it's not amongst those I
17 gave you. But it's fairly recent. And what they did is they 18 indicted a guy for burglary of a habitation and they alleged
19 with intent to commit a felony offense like sexual assault. I
20 think while in the house the guy also took something, so they 21 also did a theft. One is a first degree felony; and, as you
22 know, the other is a second degree. He was tried on both and 23 convicted on both.
25 State's argument was different elements: One is you commit
RICHARD E. ROBERTS, JR., CSR (830) 228-4634 262 Non-Jury Docket February 25, 2014 60
1 theft, the other is you had the intent to commit a sexual 2 assault. The Court of Criminal Appeals said the gravamen of
3 that offense is the entry into the house: one crime, one
4 conviction. And so -- 5 THE COURT: And the gravamen here is the taking
6 of the cigarettes. 7 MR. MCCRARY: And that's where I think the
8 problem comes in. That's why I'm not so sure that it's
9 separate offenses. 10 MR. COLLINS: And again, if we go back to the
11 paragraphs, they're separate counts with separate elements
12 that are -- again we have different -- 13 THE COURT: Do you have any cases other than
14 these that -- 15 MR. COLLINS: No, Judge. That's what I have is
16 the severing. Again, we're back to arguing that it's separate
17 offenses. 18 THE COURT: This is set on my March 17th jury
19 docket?
20 MR. McCRARY: Yes, sir. 21 MR. COLLINS: Yes, sir.
22 THE COURT: I will take these cases and do a 23 little research. I will get back to you as quickly as I can.
24 MR. McCRARY: Thank you, Your Honor.
25 THE COURT: I'm going to take this file with me.
RICHARD E. ROBERTS, JR., CSR (830) 228-4634 263 Non-Jury Docket February 25, 2014 61
1 THE CLERK: Yes, sir. 2 THE COURT: Okay. Thank you. I'm going to --
3 the indictment is in the file, Counsel. I'm going to give you
4 back what you gave to me. 5 MR. COLLINS: Thank you, Judge.
6 THE COURT: It's also attached to your motion I 7 noticed, so I have the file.
8 MR. COLLINS: Thank you.
9 THE COURT: Okay. 10 MR. McCRARY: There's not a clearcut answer or I
11 would have given it to you.
12 THE COURT: That's true. I can always rely on 13 that, especially when it's in your favor.
14 MR. MCCRARY: Well, it's in my favor either way, 15 Your Honor. Just pick which way you want to go about it.
16 THE COURT: That is interesting on both sides,
17 though. 18 MR. McCRARY: It's going to end badly one way or
19 the other.
20 MS. CHELKOWSKI: Judge, can we approach? 21 I have John Moreno. I talked to Mr. McCrary
22 about it. He has a drug court interview on Friday, so we 23 would like to see about resetting the case so that way he can
24 get that interview completed.
25 THE COURT: 2013-358, John Moreno, reset for
RICHARD E. ROBERTS, JR., CSR (830) 228-4634 264 Non-Jury Docket February 25, 2014 62
1 pretrial. 2 MS. CHELKOWSKI: Thank you, Judge.
3 THE COURT: Thank you.
4 MS. CHELKOWSKI: May I be excused? 5 THE COURT: You may.
6 The last custody case I'll take before -- or the 7 last case I will take before we start the contested hearing is
8 Rick Anthony Cruz, 2014-16 and 2014-17.
9 I've got a punishment in Lopez still pending. 10 I've got Martinez we're about to start.
11 MR. CANTRELL: Ready, Your Honor.
12 THE COURT: Oh, there you are. 13 Castilleja is ready also, but I'm going to go
14 ahead and start the contested hearing. I need to get that 15 started. They've been ready since 10:30.
16 So I'll do Cruz and then we'll start the hearing
17 and then we'll see what we've got. 18 MR. GRAHAM: You're Honor, if the Court can take
19 up the -- Ms. Chenoweth as well?
20 THE COURT: Eventually. It's not a custody 21 case. I have a custody case that's ready.
22 MR. GRAHAM: Okay. 23 THE COURT: How long is that going to take?
24 It's already ten after 11:00.
25 MR. McCRARY: I don't think it will take too
RICHARD E. ROBERTS, JR., CSR (830) 228-4634 265 Non-Jury Docket February 25, 2014 63
1 long. 2 THE COURT: Well, I'll tell you what. I'm going
3 to reset -- for those counsel that weren't here at 9:00, Lopez
4 will be reset for 1:15. 5 I'm going to do Martinez.
6 Castilleja. I know you were here, 7 Mr. Rodriguez, but I've got to get this other one done. Reset
8 for 1:15.
9 Chenoweth will be reset for 1:15 this afternoon. 10 The other Castilleja will be at 1:15.
11 And for Hart all I need is an application for
12 court-appointed attorney. 13 (At this time the contested Motion to Revoke in
14 Benito Martinez, III was heard until 12:02 p.m. 15 and then a recess for lunch.)
16 THE COURT: Lopez?
17 MR. DARWIN: Ready. 18 THE COURT: Page 2 is done. Page 3 is done.
19 Castilleja?
20 MR. RODRIGUEZ: Ready, Judge. 21 THE COURT: Both cases ready.
22 And Chenoweth? 23 THE DEFENDANT: I'm here.
24 THE BAILIFF: Mr. Graham hasn't come back yet,
25 Your Honor.
RICHARD E. ROBERTS, JR., CSR (830) 228-4634 266 Non-Jury Docket February 25, 2014 64
1 THE COURT: Okay. Cruz we did. 2 And Castilleja.
3 Okay. None of those are custody cases, correct?
4 MR. RODRIGUEZ: Yes. Castilleja is. 5 THE COURT: Well, then let's do Felix
6 Castilleja, 2013-216 and 2014-27. 7 (Discussion off the record and defendant
8 present.)
9 THE COURT: Mr. Castilleja, if you will raise 10 your right hand.
11 (Defendant sworn.)
12 THE COURT: Okay. And you are Felix Castilleja? 13 THE DEFENDANT: Yes, sir.
14 THE COURT: And the same Mr. Castilleja that was 15 indicted in -- we're going to do the plea in which one,
16 2013 --
17 MR. RODRIGUEZ: The newer cause number. 18 THE COURT: Going to plea in 2014-27. And
19 that's you?
20 THE DEFENDANT: Yes. 21 THE COURT: Okay. And part of the plea, if I
22 heard correctly, was to dismiss the 2013 case? 23 MR. RODRIGUEZ: Yes, sir.
24 THE COURT: Okay. I will just put that over
25 here. We're not going get to those yet.
RICHARD E. ROBERTS, JR., CSR (830) 228-4634 267 Non-Jury Docket February 25, 2014 65
1 We're going to go over some documents. The 2 first document is entitled acknowledgment of discovery and
3 compliance regarding discovery. It's got a longer name than
4 that. Is this your signature on this document? 5 THE DEFENDANT: Yes, sir.
6 THE COURT: Does that signature represent to the 7 Court you read and understood this document?
9 THE COURT: And Counsel, you had ample 10 opportunity to review the State's file and you're comfortable
11 that you've done all of the discovery you need to do under the
12 new article 39.14? 13 MR. RODRIGUEZ: Yes, Judge. This is, of course,
14 the new statute. And in this case since it's a bail 15 jumping/failure to appear, the discovery was very minimal and
16 we have gone over it together.
17 THE COURT: Okay. Brand new form and y'all 18 still put 2013 on it. You need to fix your form.
19 Okay. So that will be approved. Also in here
20 is a waiver of arraignment. Your signature, Mr. Castilleja? 21 THE DEFENDANT: Yes, sir.
22 THE COURT: Does that signature represent to the 23 Court you read and understood this document?
24 THE DEFENDANT: Yes, sir.
25 THE COURT: And you understand, since this is
RICHARD E. ROBERTS, JR., CSR (830) 228-4634 268 Non-Jury Docket February 25, 2014 66
1 your first setting, that you and your attorney could have had 2 at least ten days to prepare for trial?
3 THE DEFENDANT: Yes, sir.
4 THE COURT: And you're comfortable going forward 5 today with this plea?
6 THE DEFENDANT: Yes, sir. 7 THE COURT: And Counsel, you're waiving your
8 rights to ten days to prepare and you've seen all of the
9 discovery and you understand all of the facts and you believe 10 this is an appropriate, fair and just way to proceed?
11 MR. RODRIGUEZ: Yes, Judge. I'm waiving the ten
12 days. 13 THE COURT: Okay. Next is an appointment of an
14 attorney. You've represented Mr. Castilleja in the 2013 case; 15 is that correct?
16 MR. RODRIGUEZ: The whole time, correct.
17 THE COURT: Okay. And so we're just appointing 18 you based upon the fact that he's still in jail and his
19 financial position hasn't changed. And the Court will approve
20 the appointment of you to the 2014 case. 21 The next document is Trial Court Certification
22 of Defendant's Right to Appeal. I need to make two changes to 23 this document and I want to make sure you approve of it. This
24 is a plea bargain case. If you plead guilty and I follow the
25 plea, you will be waiving your right to appeal. So may I
RICHARD E. ROBERTS, JR., CSR (830) 228-4634 269 Non-Jury Docket February 25, 2014 67
1 check that box? 2 THE DEFENDANT: Yes, sir.
3 THE COURT: And then as far as the address goes,
4 may I just put in Comal County jail? 5 THE DEFENDANT: Yes, sir.
6 THE COURT: Your signature on this document? 7 THE DEFENDANT: Yes, sir.
8 THE COURT: And does that signature represent to
9 the Court you understood this document and approve the two 10 changes I made?
12 THE COURT: I will approve that and give counsel 13 your copy and his copy.
14 MR. RODRIGUEZ: Thank you, Judge. 15 THE COURT: Next document is entitled
16 admonishments, voluntary statements and plea bargain
17 agreement. Your initials on Page 1? 18 THE DEFENDANT: Yes, sir.
19 THE COURT: Two?
20 THE DEFENDANT: Yes, sir. 21 THE COURT: Three?
22 THE DEFENDANT: Yes, sir. 23 THE COURT: Four?
25 THE COURT: Five?
RICHARD E. ROBERTS, JR., CSR (830) 228-4634 270 Non-Jury Docket February 25, 2014 68
1 THE DEFENDANT: Yes, sir. 2 THE COURT: And your initials on signature on
3 Page 6?
4 THE DEFENDANT: Yes, sir. 5 THE COURT: Do those initials and signatures on
6 this document represent to the Court that you fully read it 7 and fully understood it?
9 THE COURT: Are you a citizen of the United 10 States of America.
12 THE COURT: Do you understand that you have a 13 Constitutional right to a trial by jury?
14 THE DEFENDANT: Yes, sir. 15 THE COURT: Do you understand that you have a
16 Constitutional right to confront the witnesses against you?
17 THE DEFENDANT: Yes, sir. 18 THE COURT: Are you willing to waive those two
19 rights for the purpose of entering into this negotiated plea
20 agreement? 21 THE DEFENDANT: Yes, sir.
22 THE COURT: You're going to be pleading guilty 23 to a third degree felony, which has a range of punishment of
24 not more than ten years or less than two years in a Texas
25 penitentiary and a fine not to exceed $10,000. Do you
RICHARD E. ROBERTS, JR., CSR (830) 228-4634 271 Non-Jury Docket February 25, 2014 69
1 understand that range of punishment? 2 THE DEFENDANT: Yes, sir.
3 THE COURT: The plea agreement will speak for
4 itself as written, but generally speaking it is eight years in 5 the penitentiary, a $2,000 fine, and the State will dismiss
6 2013-216. What was the indictment in that case? 7 MS. RANKIN: Ag assault, deadly weapon.
8 THE COURT: Is that everybody's understanding of
9 the agreement? 10 MS. RANKIN: Yes, Your Honor.
11 THE COURT: Yours, sir?
12 THE DEFENDANT: Yes. 13 MR. RODRIGUEZ: Yes, sir.
14 THE COURT: You understand I'm not obligated to 15 follow this agreement?
17 THE COURT: If I choose not to follow this 18 agreement, I will allow you to withdraw the plea of guilty I
19 anticipate receiving from you today.
20 If you do plead guilty and I do follow the 21 agreement, do you understand that you will have waived any and
22 all rights to appeal, including your right to bring a Motion 23 for New Trial before this court?
25 THE COURT: Counsel, is it your opinion your
RICHARD E. ROBERTS, JR., CSR (830) 228-4634 272 Non-Jury Docket February 25, 2014 70
1 client is competent to stand trial? 2 MR. RODRIGUEZ: Yes.
3 THE COURT: Then based upon this negotiated plea
4 agreement, how do you plead, sir? 5 THE DEFENDANT: On that bail jumping?
6 THE COURT: On the bail jumping. 7 THE DEFENDANT: I'm -- I plead guilty.
8 THE COURT: Are you pleading guilty because you
9 are guilty and for no other reason? 10 THE DEFENDANT: Yes, sir.
11 THE COURT: State's evidence.
12 MS. RANKIN: The State offers State's Exhibit 1, 13 the plea bargain paperwork; State's Exhibit 2 in compliance
14 with the new rules; and State's Exhibit 3 into evidence. 15 MR. RODRIGUEZ: No objections to those.
16 THE COURT: And 2 was what we went over earlier?
17 MR. RODRIGUEZ: Yes, sir. 18 THE COURT: 1, 2 and 3 are admitted.
19 Is there any reason for a presentence
20 investigation in this case? 21 MS. RANKIN: No, Your Honor.
22 THE COURT: Then I do hereby find you guilty and 23 sentence you to eight years in the Texas Department of
24 Criminal Justice, Institutional Division, and give you credit
25 for time served as allowed under the rules and laws of this
RICHARD E. ROBERTS, JR., CSR (830) 228-4634 273 Non-Jury Docket February 25, 2014 71
1 state. 2 Is it a $2,000 fine? Is that what it was?
3 MS. RANKIN: That's correct.
4 MR. RODRIGUEZ: Yes, sir. 5 THE COURT: Assess a $2,000 fine, court costs,
6 Crime Stopper's fees, and reimbursement of court-appointed 7 attorney's fees.
8 Is there anything additional?
9 MR. RODRIGUEZ: No, sir. 10 MS. RANKIN: Nothing from the State.
11 THE COURT: Good luck, sir.
12 Thank you, Counsel. 13 And you're going to get me a dismissal in the
14 2014 case? 15 MS. RANKIN: In the 2013 case.
16 MR. RODRIGUEZ: The 2013 case.
17 THE COURT: I'm sorry. In the 2013 case. 18 MS. RANKIN: Yes, sir.
19 THE COURT: Okay. 2013-227, Gilbert Lopez for
20 punishment. 21 (Defendant present.)
22 THE COURT: Okay. Here on a state jail 23 possession case. The agreement was two years in the
24 penitentiary -- or in a state jail facility, probated for
25 five; $1,500 fine; $140 restitution; 250 hours of community
RICHARD E. ROBERTS, JR., CSR (830) 228-4634 274 Non-Jury Docket February 25, 2014 72
1 service restitution; and court costs. 2 Did you bring your court costs?
3 THE DEFENDANT: No, sir.
4 THE COURT: That was part of the deal, wasn't 5 it? Yeah. If you go back and look, it says you will bring it
6 at the time of punishment. How are we going to deal with 7 that?
8 MR. DARWIN: Well, Judge, he's -- I think it
9 will probably be better if he could explain. Mr. Lopez can 10 explain what happened recently.
11 THE DEFENDANT: I recently lost my aunt and my
12 brother went under triple -- 13 THE COURT: Bypass?
14 THE DEFENDANT: -- bypass. And the money I have 15 been trying to save, I have been using it to fund my trips
16 back and forth.
17 THE COURT: Okay. Well, then we'll give some 18 time to pay court costs on this.
19 Are you employed now?
20 THE DEFENDANT: Yes, sir. 21 THE COURT: Okay. We'll set up a schedule then
22 under those circumstances where you can get it paid. 23 THE DEFENDANT: Thank you.
24 THE COURT: And I'm sorry you're having to deal
25 with all of that. How did the surgery go? Everything good?
RICHARD E. ROBERTS, JR., CSR (830) 228-4634 275 Non-Jury Docket February 25, 2014 73
1 THE DEFENDANT: Yeah. He's just got to go to 2 dialysis now for the rest of his life. But he's alive, so --
3 THE COURT: Yeah. I was going to say it beats
4 the hell out of the alternative. 5 THE DEFENDANT: Yeah.
6 THE COURT: Okay. Well, I'm glad to hear that. 7 In the conditions we've got drug school,
8 intensive outpatient and $140 restitution if I didn't say
9 that. 10 So I will find you guilty and sentence you to
11 two years in a state jail facility, probate it for five years;
12 $1,500 fine; $140 restitution; 250 hours community service 13 restitution; as well as all the other conditions of probation
14 recommended in the supervision plan. And will give him a 15 little bit of time, probably not more than 90 days, to get his
16 court costs paid. Okay?
17 Don't leave until you've been excused by the 18 probation department.
19 THE DEFENDANT: Thank you, Your Honor.
20 THE COURT: Thank you. 21 MR. DARWIN: Here's that, Judge.
22 THE COURT: Thank you. 23 MR. DARWIN: May I be excused, Your Honor?
24 THE COURT: You may. Thank you.
25 MR. DARWIN: Thank you. See you tomorrow.
RICHARD E. ROBERTS, JR., CSR (830) 228-4634 276 Non-Jury Docket February 25, 2014 74
1 THE COURT: You going to see me in Guadalupe 2 County?
3 MR. DARWIN: Yes, sir.
4 THE COURT: Can't wait. 5 (At the Bench, on the record.)
6 THE COURT: Christopher Graham has been moved 7 off of our court-appointed list?
8 THE BAILIFF: Yes, Your Honor. He has a
9 tendency to do this kind of thing a lot. 10 (End of Bench discussion.)
11 THE COURT: Ms. Chenoweth, we're going to reset
12 your case. I was clear. He was to be here at 1:15. I will 13 get your attorney's attention and I will do that before I
14 leave the courthouse today. Thank you. You're excused. 15 THE DEFENDANT: Okay. Thank you.
16 THE COURT: We're in recess.
17 (Recess.) 18
RICHARD E. ROBERTS, JR., CSR (830) 228-4634 277 Non-Jury Docket February 25, 2014 75
4 for the 274th District Court of Comal County, State of Texas, 5 do hereby certify that the above and foregoing contains a true
6 and correct transcription of all portions of evidence and 7 other proceedings requested in writing by counsel for the
8 parties to be included in this volume of the Reporter's Record
9 in the above-styled and numbered cause, all of which occurred 10 in open court or in chambers and were reported by me.
12 proceedings truly and correctly reflects the exhibits, if any, 13 offered by the respective parties.
14 WITNESS MY OFFICIAL HAND on this, the 31st day of March, 15 2014.
20 ______________________________________ RICHARD E. ROBERTS, JR., CSR 21 Texas CSR 5411 Official Court Reporter 22 274th District Court P.O. Box 311905 23 New Braunfels, Texas 78131-1905 Expiration: 12/31/14 24
RICHARD E. ROBERTS, JR., CSR (830) 228-4634 278 Non-Jury Docket March 13, 2014 1
1 REPORTER'S RECORD VOLUME 2 OF 2 VOLUMES 2 274th JUDICIAL DISTRICT COURT
6 7 _____________________________________________
8 NON-JURY DOCKET _____________________________________________ 9 10
20 21 On the 13th day of March, 2014, the following proceedings
22 came on to be held in the above-titled and numbered cause 23 before the Honorable Gary L. Steel, Judge Presiding, held in
24 New Braunfels, Comal County, Texas.
RICHARD E. ROBERTS, JR., CSR (830) 228-4634 279 Non-Jury Docket March 13, 2014 2
4 PAGE VOL. 5 Excerpts of CR2013-366 ............................3 2
6 Reporter's Certificate ...........................10 2 7
RICHARD E. ROBERTS, JR., CSR (830) 228-4634 280 Excerpts of CR2013-366 March 13, 2014 3
1 P R O C E E D I N G S 2 (Beginning of requested excerpt)
3 THE COURT: 2013-366, Chelsie Chenoweth.
4 THE DEFENDANT: Present. 5 THE COURT: Your attorney is Christopher Graham?
6 THE DEFENDANT: Yes, sir. 7 THE COURT: Let me see that file.
8 MS. MAURER: Your Honor, his office called. An
9 attorney by the name of James Lacy is going to show up and is 10 going to be late. This is one we have a show cause on.
11 THE COURT: I know.
12 MR. HEARRELL: There's another docket sheet, I 13 believe.
14 THE COURT: Is your attorney retained or 15 appointed?
16 THE DEFENDANT: Appointed.
17 THE COURT: Mr. Graham is appointed? 18 THE DEFENDANT: Uh-huh.
19 THE COURT: Stay put.
20 (End of requested excerpt) 21 (Beginning of requested excerpt)
22 THE COURT: 2013-366. Is this a probation show 23 cause?
24 MS. MAURER: That's your show cause.
25 THE COURT: Oh, that's my show cause for
RICHARD E. ROBERTS, JR., CSR (830) 228-4634 281 Excerpts of CR2013-366 March 13, 2014 4
1 Christopher Graham. Has anybody from his office gotten here 2 yet? It's my understanding he's filed a Motion for
3 Continuance. It's somewhere. I have been told he's filed a
4 Motion for Continuance. 5 MR. MCCRARY: I've seen it. It exists.
6 THE CLERK: Yeah. Well, I don't think he 7 filed --
8 THE COURT: That's mine.
9 THE CLERK: It's for the show cause. 10 MR. MCCRARY: It's within it somewhere.
11 THE CLERK: Oh, is it?
12 MR. MCCRARY: Yeah. 13 THE COURT: Here's what I'm going to do on my
14 show cause. I'm going to ask for a visiting judge to hear the 15 show cause. And I would like to ask the district attorney if
16 you would be willing to represent the Court in the show cause
17 against Mr. Graham. Talk to your boss and see whether you're 18 willing to do that for me or not.
19 And I'm going to instruct the court reporter on
20 the date of his failure to appear at 9:00 and return at 1:15, 21 to assist the visiting judge as well as the State if they
22 choose -- and I think you have the right to opt out if you 23 want to. But I would ask you to please -- I've never done
24 that, but I'd ask you to represent the Court on the show
25 cause.
RICHARD E. ROBERTS, JR., CSR (830) 228-4634 282 Excerpts of CR2013-366 March 13, 2014 5
1 What's the date of my show cause for his failure 2 to appear? It's an unsworn declaration on his Motion for
3 Continuance. I will let a visiting judge deal with all of
4 this. 5 It was my last date. You can find it, Rick.
6 THE REPORTER: Yes, sir. 7 THE COURT: I would like you to prepare a sworn
8 transcript on the docket call as well as when we broke for
9 lunch when I called the three cases that were left and 10 informed them to be back here at 1:15 and anytime that I
11 called that case and he wasn't here and the times he was here.
12 He showed up late and then he disappeared. We 13 had court and reconvened, if I remember, at 1:15 or very close
14 thereto; dealt with the other cases; and then left and he 15 wasn't here. He may have shown up later.
16 I will inform the D.A.: If you're going to do
17 this, I think he did show up later and spoke to -- is that -- 18 to Nick?
19 THE BAILIFF: Yes, Your Honor.
20 THE COURT: He spoke to my bailiff quite rudely 21 I understand, but I will let you deal with that. And I will
22 need to get a request for a visiting judge to hear the 23 contempt. I will need to send out another notice to him on
24 the show cause.
25 And I'd like the D.A. to report back to me on
RICHARD E. ROBERTS, JR., CSR (830) 228-4634 283 Excerpts of CR2013-366 March 13, 2014 6
1 whether you're going to represent me in that case or not. 2 MR. McCRARY: I will talk to the boss.
3 THE COURT: Ms. Chenoweth, who is coming over
4 from his office? 5 THE DEFENDANT: I don't know.
6 THE COURT: You don't know? 7 THE DEFENDANT: No, sir.
8 THE COURT: When your attorney gets here tell
9 him I'd like to talk to him. 10 THE DEFENDANT: I don't even know if he's
11 coming. I haven't talked to him at all since the day I --
12 when I came back after lunch and he never showed up. 13 THE COURT: Do we have any kind of Motion for
14 Continuance for the pretrial today? I've not been shown one. 15 MS. MAURER: I haven't seen it.
16 THE COURT: Then issue him a show cause for not
17 being here at 9:00 today, also, with the same visiting judge. 18 I'll ask y'all to represent me in that one,
19 also.
20 THE REPORTER: Do you want this portion, also? 21 THE COURT: Pardon me?
22 THE REPORTER: Do you want this portion, also? 23 THE COURT: Yes, I do.
24 Ms. Chenoweth, if you will approach.
25 (Ms. Chenoweth approaches.)
RICHARD E. ROBERTS, JR., CSR (830) 228-4634 284 Excerpts of CR2013-366 March 13, 2014 7
1 THE COURT: You were appointed Mr. Graham; is 2 that correct?
3 THE DEFENDANT: Uh-huh.
4 THE COURT: He's been removed from our 5 court-appointed list. I'm going to substitute a new attorney
6 for you. Don't leave until you find out who that is. 7 THE DEFENDANT: Okay.
8 THE COURT: And then once we find out who that
9 is, if they're here I will let you confer with them and we'll 10 give them a reset. If it's somebody that's not here today,
11 then I will excuse you and you'll get new notice through the
12 new counsel. 13 THE DEFENDANT: Okay.
14 MR. MCCRARY: Just for the record, can we be 15 sure she doesn't have any objection to that, Your Honor?
16 THE COURT: Do you have any objections to that?
17 THE DEFENDANT: No. 18 THE COURT: Are you sure?
19 THE DEFENDANT: Uh-huh.
20 THE COURT: Okay. And just so we were clear, 21 you're not even sure whether you're going to have counsel here
22 today. Is that what you were telling the Court? 23 THE DEFENDANT: Uh-huh. I haven't anything from
24 him at all.
25 THE COURT: Since?
RICHARD E. ROBERTS, JR., CSR (830) 228-4634 285 Excerpts of CR2013-366 March 13, 2014 8
1 THE DEFENDANT: Since the last time I had court 2 and he didn't show up after lunch when I came back.
3 THE COURT: Okay. And you don't have any
4 objection to me giving you a new attorney off of our list 5 that's been approved by the Court?
6 THE DEFENDANT: No, I don't. 7 THE COURT: Please don't leave until we've done
8 that.
9 THE DEFENDANT: Okay. 10 THE COURT: Get me a substitution of counsel in
11 this case.
12 MS. MAURER: Yes, sir. 13 (End of requested excerpt)
14 (Beginning of requested excerpt) 15 THE COURT: Let me do that real quick and see
16 who we're missing. Michael Zamora?
17 Christopher Graham or anybody from his law 18 office?
19 (End of requested excerpt)
20 (Beginning of requested excerpt) 21 THE COURT: I've got Oaks conferring.
22 We're waiting for Mr. Esman now. 23 I've got Valdez on a Motion to Suppress.
24 I'm still looking for Mr. Graham. I don't think
25 he's going to be here.
RICHARD E. ROBERTS, JR., CSR (830) 228-4634 286 Non-Jury Docket March 13, 2014 9
1 I'm waiting for Mr. Peterson to come back on 2 Hart.
3 I've got Carnes with Mr. Rodriguez as
4 conferring. 5 Covarrubias with Mr. Darwin that's conferring.
6 I've got Reyes is ready. 7 I've got Kuykendall waiting for a State's
8 witness.
9 Ontiveros conferring. 10 Zuniga conferring.
11 (End of requested excerpt)
RICHARD E. ROBERTS, JR., CSR (830) 228-4634 287 Non-Jury Docket March 13, 2014 10
4 for the 274th District Court of Comal County, State of Texas, 5 do hereby certify that the above and foregoing contains a true
6 and correct transcription of all portions of evidence and 7 other proceedings requested in writing by counsel for the
8 parties to be included in this volume of the Reporter's Record
9 in the above-styled and numbered cause, all of which occurred 10 in open court or in chambers and were reported by me.
12 proceedings truly and correctly reflects the exhibits, if any, 13 offered by the respective parties.
14 I further certify that the total cost for the preparation 15 of this Reporter's Record is $457.50 and will be paid by Comal
16 County.
17 WITNESS MY OFFICIAL HAND on this, the 31st day of March, 18 2014.
20 /s/ Richard E. Roberts, Jr. 21 _________________________________
22 RICHARD E. ROBERTS, JR., CSR Texas CSR 5411 23 Official Court Reporter 274th District Court 24 P.O. Box 311905 New Braunfels, Texas 78131-1905 25 Expiration: 12/31/14
RICHARD E. ROBERTS, JR., CSR (830) 228-4634 TRANSCRIPT COVER SHEET 2nd SUPPLEMENTAL CLERKS RECORD VOL I OF I 1
APPLICATION FOR WRIT OF HABEAS CORPUS (FILED MAR 19, 2015) 4-8
DESIGNATION OF MATTERS IN CLERKS RECORD (FILED MAY 19, 2015) 11
CLERKS CERTIFICATE 13
in Re Christopher L. Graham (in Re Christopher L. Graham) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.