ACCEPTED 01-15-00401-CR FIRST COURT OF APPEALS HOUSTON, TEXAS 7/24/2015 3:17:06 PM CHRISTOPHER PRINE CLERK
NO. 01-15-00401-CR
IN THE FILED IN FIRST COURT OF APPEALS 1st COURT OF APPEALS HOUSTON, TEXAS AT HOUSTON, TEXAS 7/24/2015 3:17:06 PM CHRISTOPHER A. PRINE Clerk IN THE MATTER OF DAVID CHRISTOPHER HESSE, Appellant
MOTION FOR SANCTIONS
TO THE HONORABLE JUDGES OF SAID COURT:
Appellant, David Christopher Hesse, moves for sanctions against Gail
Kikawa McConnell, and shows:
1. This motion is precipitated by allegations and statements
contained within the State’s Appellate Brief, signed by Ms. McConnell, which
are false.
2. Counsel has a duty of candor to this Court. See Tex. Disciplinary
R. Prof. Conduct § 3.03, reprinted in Tex. Gov’t Code Ann., Tit. 2, subtit. G,
App. A (Vernon 2005) (Tex. State Bar R. art. X, § 9). “A lawyer shall not
knowingly make a false statement of material fact ... to a tribunal.” Id. §
3.03(a)(1). As will be shown, Ms. McConnell violated that duty to this Court.
3. Because of the false statements and violations of her duty of
1 candor to this Court, Appellant feels compelled to bring these violations to the
Court’s attention.
FACTUAL BASIS OF MOTION:
4. Throughout the State’s Brief, Ms. McConnell repeatedly states that
Appellant requested a de novo hearing under § 21.002(d), Tex. Gov’t Code.
Nowhere in the contempt hearing of February 26, 2015, do the words, de
novo, appear. See C.R. pp. 34 – 39. Nowhere in § 21.002(d), Tex. Gov’t Code,
does the statute state that the hearing is de novo. Instead, the statute states
that the officer of the court shall be released pending a determination of his
guilt or innocence. And, in light of the procedure mandated by Ex parte
Pink,1 the trial in front of the judge to whom the contempt is assigned is to
determine, in the first instance and not de novo, whether the officer of the
court is or is not guilty of contempt.2
5. In the Statement of Facts, first paragraph, Ms. McConnell
challenged all factual assertions contained in Appellant’s Brief. Two of the
1 Ex parte Pink, 645 S.W.2d 262, 263 (Tex. Crim. App. 1982). … 2 Interestingly, nowhere in the State’s Brief is Pink cited or distinguished or even argued not to be controlling. The only reference to Pink is when the State quotes from Appellant’s Brief. This failure also violates the duty of candor, as an attorney is not free to turn a blind eye to the law. See Bradt v. West, 892 S.W.2d 56, 79 (Tex.App.–Houston [1ST Dist.] 1994, writ denied).
2 factual assertions contained within Appellant’s Brief are:
“The Commitment Orders were executed and Hesse was taken into
custody by the Sheriff of Fort Bend County.3
After he was taken into custody, Hesse was booked in, processed, and
then allowed to post a $500 personal recognizance bond.4 No explanation is
available as to why the Fort Bend County Sheriff made the bond in the penal
sum of $500.” (Appellant’s Brief, Statement of Facts, page 5)
6. Ms. McConnell’s assertion is that “Appellant was escorted to the
Fort Bend County Jail to process his personal recognizance bond.” (State’s
Brief, Statement of Facts, p. 1) This argument ignores the Order of
Commitment contained within the two Judgments of Contempt (C.R. pp. 6 –
11), the order pronounced by Judge Duggan that Appellant be taken into
custody (C.R. p. 37, ll. 10 – 20), and the Record at C.R. p. 38, ll. 16 – 20,
showing that Appellant was taken into custody.
7. On page 2 of the State’s Brief, Ms. McConnell states that
“Appellant was not arrested, but detained and released after completing the
Sheriff’s procedures for recording a personal recognizance bond.”
3 C.R. p. 250. … 4 C.R. p. 247. …
3 8. Attached hereto, marked Exhibit 1 and incorporated by reference,
for all intents and purposes as though set forth herein verbatim, is a Certified
Copy of the Appellant’s booking photograph taken February 26, 2015 at
15:16:59. Appellant requests the Court to take judicial notice of same.
9. Appellant also directs the Court to the Personal Recognizance Bail
Bond. (C.R. p. 247) While this document does not appear to bear a time
stamp, it would not have been executed until after Appellant was fully booked
and processed. And it does not reflect that it is a Non-Arrest Bail Bond.
ARGUMENT AND AUTHORITY:
10. A court has inherent power to sanction bad faith conduct during
the course of litigation that interferes with administration of justice or the
preservation of the court’s dignity and integrity. Onwuteaka v. Gill, 908
S.W.2d 276, 280 (Tex.App.–Houston [1st Dist.] 1995, no writ); Metzger v.
Sebek, 892 S.W.2d 20, 51 (Tex.App.–Houston [1st Dist.] 1994, writ denied);
see Eichelberger v. Eichelberger, 582 S.W.2d 395, 399 (Tex.1979). And
Courts possess inherent power to discipline an attorney’s behavior. See
Merrell Dow Pharm., Inc. v. Havner, 953 S.W.2d 706, 732 (Tex.1997)
(order on mot. for reh’g).
11. Counsel should be allowed great latitude in presenting argument
4 to the Court. See In re Maloney, 949 S.W.2d 385, 388 (Tex.App.-San
Antonio 1997) (en banc) (per curiam). However, that latitude is not
unrestricted. See Merrell Dow Pharm., Inc. v. Havner, 953 S.W.2d 706,
732 (Tex.1997) (order on mot. for reh’g); In re Maloney, 949 S.W.2d at 388.
Deliberately misstating facts demeans the integrity of the judicial system and
violates the rules of professional conduct. No Court has countenanced an
attorney deliberately misstating operative facts.
12. The fact that there is a booking photograph of Appellant within the
records of the Fort Bend County Jail, conclusively proves that Appellant was
arrested. To book someone means to record the name of (a person arrested)
in a sequential list of police arrests, with details of the person’s identity
(usually including a photograph and a fingerprint), particulars about the
alleged offense, and the name of the arresting officer
booked immediately after arrest>. Source: Black’s Law Dictionary (10th ed.
2014).
13. Ms. McConnell’s Statement of Fact, that Appellant was “escorted”
to the Fort Bend County Jail, is disingenuous at best. To escort, as a verb,
means to attend or accompany as an escort. Source: Random House
Dictionary, © Random House, Inc. 2015. By using the term, “escorted”, Ms.
5 McConnell implies that Appellant was walked over to the Fort Bend County
Jail. No. Appellant was taken into custody by the bailiff, taken through the
inner bowels of the Fort Bend County Courthouse and the tunnel to the Fort
Bend County Jail, there to be booked, fingerprinted and photographed. He
was in custody, under arrest. A person is in “custody” only if, under the
circumstances, a reasonable person would believe that his freedom of
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ACCEPTED 01-15-00401-CR FIRST COURT OF APPEALS HOUSTON, TEXAS 7/24/2015 3:17:06 PM CHRISTOPHER PRINE CLERK
NO. 01-15-00401-CR
IN THE FILED IN FIRST COURT OF APPEALS 1st COURT OF APPEALS HOUSTON, TEXAS AT HOUSTON, TEXAS 7/24/2015 3:17:06 PM CHRISTOPHER A. PRINE Clerk IN THE MATTER OF DAVID CHRISTOPHER HESSE, Appellant
MOTION FOR SANCTIONS
TO THE HONORABLE JUDGES OF SAID COURT:
Appellant, David Christopher Hesse, moves for sanctions against Gail
Kikawa McConnell, and shows:
1. This motion is precipitated by allegations and statements
contained within the State’s Appellate Brief, signed by Ms. McConnell, which
are false.
2. Counsel has a duty of candor to this Court. See Tex. Disciplinary
R. Prof. Conduct § 3.03, reprinted in Tex. Gov’t Code Ann., Tit. 2, subtit. G,
App. A (Vernon 2005) (Tex. State Bar R. art. X, § 9). “A lawyer shall not
knowingly make a false statement of material fact ... to a tribunal.” Id. §
3.03(a)(1). As will be shown, Ms. McConnell violated that duty to this Court.
3. Because of the false statements and violations of her duty of
1 candor to this Court, Appellant feels compelled to bring these violations to the
Court’s attention.
FACTUAL BASIS OF MOTION:
4. Throughout the State’s Brief, Ms. McConnell repeatedly states that
Appellant requested a de novo hearing under § 21.002(d), Tex. Gov’t Code.
Nowhere in the contempt hearing of February 26, 2015, do the words, de
novo, appear. See C.R. pp. 34 – 39. Nowhere in § 21.002(d), Tex. Gov’t Code,
does the statute state that the hearing is de novo. Instead, the statute states
that the officer of the court shall be released pending a determination of his
guilt or innocence. And, in light of the procedure mandated by Ex parte
Pink,1 the trial in front of the judge to whom the contempt is assigned is to
determine, in the first instance and not de novo, whether the officer of the
court is or is not guilty of contempt.2
5. In the Statement of Facts, first paragraph, Ms. McConnell
challenged all factual assertions contained in Appellant’s Brief. Two of the
1 Ex parte Pink, 645 S.W.2d 262, 263 (Tex. Crim. App. 1982). … 2 Interestingly, nowhere in the State’s Brief is Pink cited or distinguished or even argued not to be controlling. The only reference to Pink is when the State quotes from Appellant’s Brief. This failure also violates the duty of candor, as an attorney is not free to turn a blind eye to the law. See Bradt v. West, 892 S.W.2d 56, 79 (Tex.App.–Houston [1ST Dist.] 1994, writ denied).
2 factual assertions contained within Appellant’s Brief are:
“The Commitment Orders were executed and Hesse was taken into
custody by the Sheriff of Fort Bend County.3
After he was taken into custody, Hesse was booked in, processed, and
then allowed to post a $500 personal recognizance bond.4 No explanation is
available as to why the Fort Bend County Sheriff made the bond in the penal
sum of $500.” (Appellant’s Brief, Statement of Facts, page 5)
6. Ms. McConnell’s assertion is that “Appellant was escorted to the
Fort Bend County Jail to process his personal recognizance bond.” (State’s
Brief, Statement of Facts, p. 1) This argument ignores the Order of
Commitment contained within the two Judgments of Contempt (C.R. pp. 6 –
11), the order pronounced by Judge Duggan that Appellant be taken into
custody (C.R. p. 37, ll. 10 – 20), and the Record at C.R. p. 38, ll. 16 – 20,
showing that Appellant was taken into custody.
7. On page 2 of the State’s Brief, Ms. McConnell states that
“Appellant was not arrested, but detained and released after completing the
Sheriff’s procedures for recording a personal recognizance bond.”
3 C.R. p. 250. … 4 C.R. p. 247. …
3 8. Attached hereto, marked Exhibit 1 and incorporated by reference,
for all intents and purposes as though set forth herein verbatim, is a Certified
Copy of the Appellant’s booking photograph taken February 26, 2015 at
15:16:59. Appellant requests the Court to take judicial notice of same.
9. Appellant also directs the Court to the Personal Recognizance Bail
Bond. (C.R. p. 247) While this document does not appear to bear a time
stamp, it would not have been executed until after Appellant was fully booked
and processed. And it does not reflect that it is a Non-Arrest Bail Bond.
ARGUMENT AND AUTHORITY:
10. A court has inherent power to sanction bad faith conduct during
the course of litigation that interferes with administration of justice or the
preservation of the court’s dignity and integrity. Onwuteaka v. Gill, 908
S.W.2d 276, 280 (Tex.App.–Houston [1st Dist.] 1995, no writ); Metzger v.
Sebek, 892 S.W.2d 20, 51 (Tex.App.–Houston [1st Dist.] 1994, writ denied);
see Eichelberger v. Eichelberger, 582 S.W.2d 395, 399 (Tex.1979). And
Courts possess inherent power to discipline an attorney’s behavior. See
Merrell Dow Pharm., Inc. v. Havner, 953 S.W.2d 706, 732 (Tex.1997)
(order on mot. for reh’g).
11. Counsel should be allowed great latitude in presenting argument
4 to the Court. See In re Maloney, 949 S.W.2d 385, 388 (Tex.App.-San
Antonio 1997) (en banc) (per curiam). However, that latitude is not
unrestricted. See Merrell Dow Pharm., Inc. v. Havner, 953 S.W.2d 706,
732 (Tex.1997) (order on mot. for reh’g); In re Maloney, 949 S.W.2d at 388.
Deliberately misstating facts demeans the integrity of the judicial system and
violates the rules of professional conduct. No Court has countenanced an
attorney deliberately misstating operative facts.
12. The fact that there is a booking photograph of Appellant within the
records of the Fort Bend County Jail, conclusively proves that Appellant was
arrested. To book someone means to record the name of (a person arrested)
in a sequential list of police arrests, with details of the person’s identity
(usually including a photograph and a fingerprint), particulars about the
alleged offense, and the name of the arresting officer
booked immediately after arrest>. Source: Black’s Law Dictionary (10th ed.
2014).
13. Ms. McConnell’s Statement of Fact, that Appellant was “escorted”
to the Fort Bend County Jail, is disingenuous at best. To escort, as a verb,
means to attend or accompany as an escort. Source: Random House
Dictionary, © Random House, Inc. 2015. By using the term, “escorted”, Ms.
5 McConnell implies that Appellant was walked over to the Fort Bend County
Jail. No. Appellant was taken into custody by the bailiff, taken through the
inner bowels of the Fort Bend County Courthouse and the tunnel to the Fort
Bend County Jail, there to be booked, fingerprinted and photographed. He
was in custody, under arrest. A person is in “custody” only if, under the
circumstances, a reasonable person would believe that his freedom of
movement was restrained to the degree associated with a formal arrest.
Stansbury v. California, 511 U.S. 318– 320 - 324 (1994). No one would
believe that anyone on the other side of the bars in the Fort Bend County Jail
was not under arrest.
REQUESTED RELIEF:
14. In light of the deliberate misstatements made in the State’s Brief,
this Court should hold a hearing and require the State to show cause, if any it
has, as to why its Brief should not be stricken and the State ordered to replead.
Further, at the hearing this Court should determine what sanctions to impose
of Ms. McConnell for the violations of her ethical duties to this Court,
including her duty of candor, as set forth above. This Court should grant
David Christopher Hesse general relief.
6 Respectfully submitted,
/s/ L.T. “Butch” Bradt L.T. “Butch” Bradt #02841600 14015 Southwest Freeway, Suite 4 Sugar Land, Texas 77478-3500 (281) 201-0700 Fax: (281) 201-1202 ltbradt@flash.net
Michael Mowla #24048680 445 E. FM 1382 #3-718 Cedar Hill, Texas 75104 (972) 795-2401 Fax: (972) 692-6636 michael@mowlalaw.com
Attorneys for Appellant, David Christopher Hesse
CERTIFICATE OF SERVICE
I, the undersigned attorney, in accordance with the Rule 9.5, T.R.A.P., certify that a true and correct copy of the foregoing Brief was delivered to:
Gail Kikawa McConnell, Ass’t District Attorney 301 Jackson Street, Room 101 Richmond, TX 77469 Gail.McConnell@fortbendcountytx.gov
On July 24, 2015.
/s/ L.T. “Butch” Bradt L.T. “Butch” Bradt