Opinion
No. 3:99-CV-2274-BF
May 20, 2002
Before Chief Justice Thomas and Justices Bridges and Roach
MEMORANDUM OPINION AND ORDER
Diana Garcia Orr, Petitioner, and Dallas County Sheriff Jim Bowles, Respondent, consented to proceed before United States Magistrate Judge Paul D. Stickney on Petitioner's Application for Writ of Habeas Corpus by a Person in Custody Pursuant to a State Court Judgment, filed October 5, 1999. Respondent filed an Expedited Answer and Response to Petition for Writ of Habeas Corpus on November 5, 1999. Petitioner filed her Reply Brief in Support of Application for Writ of Habeas Corpus on November 18, 1999. Both parties have thoroughly briefed the issues before the Court. Petitioner filed Certified Records in Support of Application for Writ of Habeas Corpus By a Person in Custody Pursuant to a State Court Judgment and Supplemental Sworn Records in Support of Application for Writ of Habeas Corpus By a Person in Custody Pursuant to a State Court Judgment.
The records do not include (1) the orders to Petitioner and to the trial court that preceded the show cause orders that resulted in the contempt judgments, (2) Petitioner's responses to the show cause orders that resulted in the contempt judgments, (3) Petitioner's motion for reconsideration and supporting affidavit filed in the state appellate court, or (4) the Appendix to Respondent's Response to Relator's Motion for Leave to File Petition for Writ of Habeas Corpus and Petition for Writ of Habeas Corpus.
STATEMENT OF THE CASE
Petitioner is a former state-certified court reporter. The Court of Appeals, Fifth District of Texas at Dallas, held Petitioner in contempt of court in ten appeals, fined her a total of $5,000 and ordered her to serve from ten to thirty days in jail for criminal contempt. Additionally, in the same proceedings, the appellate court held Petitioner in civil contempt and sentenced her to jail until she completed the records in a number of appeals. In each of those proceedings, Petitioner had failed to timely file her court reporter's record with the Court of Appeals after having been ordered to do so several times.Petitioner brings a petition for a writ of habeas corpus by a person in state custody, pursuant to 28 U.S.C. § 2254. Petitioner was in the Dallas County Jail in custody of Dallas County Sheriff Jim Bowles pursuant to the contempt judgments when she initiated this proceeding.
FACTS
Petitioner was a court reporter for the 363rd District Court of Dallas County, Texas. She was also a substitute court reporter for Criminal District No. 2 of Dallas County. Petitioner failed to timely file in the Court of Appeals, Fifth District of Texas at Dallas, the reporter's record in ten appeals of fifteen criminal convictions. The appellate court granted some extensions of time, ordered the trial court to hold hearings to determine why the records had not been filed, and issued various orders to the trial court and to Petitioner to obtain the reporter's records. What action, if any, the trial court took is not apparent from the record. Ultimately, the appellate court set a final deadline for filing each of the records and directed Petitioner "to show cause why she should not be held in contempt of the appellate court for failing to file the reporter's record by the date it was due and punished for failing to do so." Judgments of Contempt were issued by the Court of Appeals as follows:
1. On July 6, 1998, the appellate court held Petitioner in criminal and civil contempt of court. It fined Petitioner $500 and ordered her to serve ten days in jail. The appellate court further directed that Petitioner be confined in jail until such time as the complete reporter's record was filed.
2. On October 26, 1998, in another appeal, the appellate court held Petitioner in criminal and civil contempt of court, fined Petitioner $500 and sentenced her to ten days in jail. The appellate court further directed that Petitioner be confined in jail until such time as the complete reporter's record was filed. On the same date, in two other appeals, the appellate court held Petitioner in criminal contempt of court, fined Petitioner a total of $1,000 ($500 in each case) and ordered her to serve ten-day jail sentences.
3. On November 5, 1998, in five appeals, the appellate court held Petitioner in criminal contempt of court, fined Petitioner a total of $2,500 ($500 in each case) and ordered Petitioner to serve from twenty to thirty days in jail.
4. On August 30, 1999, the appellate court held Petitioner in criminal contempt of court, fined Petitioner $500 and ordered her to serve thirty days in jail.
Petitioner eventually filed the complete reporter's records. On February 9, 1999, Petitioner filed a motion seeking reconsideration of the contempt orders. ( Petitioner's Brief of Arguments and Authorities in Support of Application for Writ of Habeas Corpus by a Person in Custody Pursuant to a State Court Judgment at 13). This motion was supported by Petitioner's affidavit in which she alleged that her failure to timely file the records in each of the ten appeals resulted from "a number of circumstances that combined to make compliance impossible." ( Id.). The Court of Appeals denied the motion for reconsideration. ( Id.). Petitioner sought review in the Texas Court of Criminal Appeals by filing two separate motions for leave to file a Writ of Habeas Corpus. In the first motion, Petitioner sought leave to file a writ of habeas corpus to challenge the first nine contempt judgments. Ex parte Orr, No. 39, 929-02 (Tex. Crim App. Aug. 18, 1999). In the second motion, Petitioner sought leave to file a writ of habeas corpus to challenge the tenth contempt judgment. Ex parte Orr, No. 39, 929-03 (Tex. Crim App. Oct. 7, 1999). The Texas Court of Criminal Appeals denied Petitioner leave to file a writ of habeas corpus. ( Petitioner's Supplemental Sworn Records in Support of Application for Writ of Habeas Corpus by a Person in Custody Pursuant to a State Court Judgment).
The Texas Court of Criminal Appeals required Petitioner to post a bond and released her while it considered her first motion for leave to file a petition for writ of habeas corpus. ( Exh. "U" to Petitioner's Application). When the Texas Court of Criminal Appeals denied Petitioner's first motion for leave to file a petition for writ of habeas corpus, it revoked the bond. ( Petitioner's Application for Writ at 1-2). Petitioner then surrendered herself to the custody of Dallas County Sheriff Jim Bowles. She remained in custody until October 6, 1999, when this Court released Petitioner on her own recognizance pending the Court's decision in this proceeding. ( Petitioner's Motion to be Released on Recognizance or Bail Pending Consideration of Application for Writ of Habeas Corpus; Order Releasing Prisoner from Custody Pending Application for Writ of Habeas Corpus). On October 7, 1999, the Texas Court of Criminal Appeals denied Petitioner's second motion for leave to file a writ of habeas corpus.
The record does not indicate the surrender date, but the Court believes it was a short time before Petitioner sought release on bond in this proceeding.
The merits of the contempt proceedings are not before the Court. Petitioner claims the state appellate court denied her due process in each of the contempt proceedings, and that the State's procedure for contempt denied her equal protection of the law. The procedure the appellate court followed in finding Petitioner in contempt was substantially the same in each of the cases. This Court includes in Appendix "A" to this Memorandum Opinion and Order summaries of the proceedings, taken from Petitioner's Application for Writ of Habeas Corpus and Certfied Records in Support of Application for Writ of Habeas Corpus.
STANDARD OF REVIEW
This court has jurisdiction over this mailer pursuant to 28 U.S.C. § 2254. The Antiterrorism and Effective Death Penalty Act's ("AEDPA's") deferential framework, as set out in § 2254(d) and (e), applies only when a state court has adjudicated a petitioner's writ of habeas corpus on the merits. Valdez v. Cockrell, 274 F.3d 941, 954 (5th Cir. 2001). An adjudication on the merits does not occur when the state habeas court disposes of the state habeas petition on procedural rather than substantive grounds. Fisher v. Texas, 169 F.3d 295, 300 (5th Cir. 1999). In this case, the state court denied Petitioner leave to file a writ of habeas corpus. ( Petitioner's Supplemental Sworn Records). Accordingly, no state court adjudication occurred, and Petitioner is entitled to de novo review. See Johnson v. Cain, 215 F.3d 489, 493 (5th Cir. 2000). This Court has jurisdiction to grant habeas corpus relief because there is an absence of available State corrective process, or circumstances exist that render such process ineffective to protect Petitioner's constitutional rights. See 28 U.S.C. § 2254 (b)(1)(B).
There is no question that the Petitioner met the "in custody" requirement when she filed her petition for writ of habeas corpus. See Carafas v. LaVallee, 391 U.S. 234, 238 (1968).
A habeas corpus proceeding is a collateral attack on a contempt judgment. See, e.g., Johnson v. Zerbst, 304 U.S. 458, 465 (1938). To be entitled to a writ of habeas corpus, a petitioner must prove that the underlying contempt judgment is void. Id. at 468. An underlying judgment is void if it was beyond the court's power to enter the judgment, or if the judgment deprived the relator of liberty without due process. See Ex Parte Casillas, 25 S.W.3d 296, 298 (Tex.App.-San Antonio, 2000) (citations omitted).
ANALYSIS
Petitioner claims that the contempt judgments violated her due process rights in the following particulars: (1) the show cause notice was constitutionally deficient; (2) she was denied her right to a public trial; (3) she was punished in part for acts that occurred after the show cause order issued; (4) she was denied her Sixth Amendment right to counsel or right to have counsel appointed if she were indigent; (5) she was denied the right to an unbiased tribunal; (6) she was denied her right to a jury trial; and (7) she was denied the presumption of innocence. In addition, Petitioner claims that the Texas procedure that resulted in the contempt judgments denied her equal protection of the law.
DUE PROCESS REQUIREMENTS
The notices and show cause orders in each of the ten proceedings are essentially the same, except that they reference different criminal appeals and different reporter's records. The "notice and show cause order" in the first proceeding, issued June 10, 1998, is attached as Appendix "B." Petitioner is ordered to "show cause why she should not be held in contempt of [the appellate] Court for failing to file the reporter's record by the date it was due and punished for failing to do so."
On July 6, 1998, without a public hearing, the same panel that was offended by Petitioner's failure to obey its orders, entered a judgment of contempt, finding (1) that Petitioner was served with a copy of the notice and order to show cause on June 21, 1998, (2) that the deadline set in the order for Petitioner to show cause was June 29, 1998, (3) that on June 29, 1998, Petitioner delivered to the Court an affidavit explaining her failure to timely file the reporter's record, but she did not deliver the reporter's record to the Court. The Court held that she had failed to comply with the orders of the court and in particular the "order to file reporter's record and to show cause," dated June 10, 1998. The Court held her in contempt, fined her $500 and assessed punishment at ten calendar days in the Dallas County Jail and further ordered that she be confined thereafter in the Dallas County Jail until she filed the complete reporter's record.
The United States Supreme Court spelled out the procedural due process protections required in contempt proceedings as follows:
Except for a narrowly limited category of contempts, due process of law . . .
Summary disposition is constitutionally permissible only for "charges of misconduct, in open court, in the presence of the judge, which disturbs the court's business, where all of the essential elements of the misconduct are under the eye of the court, are actually observed by the court, and where immediate punishment is essential to prevent `demoralization of the court's authority before the public.'" Re Oliver, 333 U.S. at 275.
requires that one charged with contempt of court be advised of the charges against him, have a reasonable opportunity to meet them by way of defense or explanation, have the right to be represented by counsel, and have a chance to testify and call other witnesses in his behalf, either by way of defense or explanation.Re Oliver, 333 U.S. 257, 275 (1948), following Cooke v. United States, 267 U.S. 517, 537 (1925). Defendants charged with criminal contempt are entitled to full criminal process, including the right to adequate notice ( United States v. United Mine Workers, 330 U.S. 258, 297-98 (1947)); the right to a public trial ( Re Oliver, 333 U.S. at 275); the right to counsel ( Ridgway v. Baker, 720 F.2d 1409, 1415 (5th Cir. 1983)); the right to a jury trial in some cases ( United Mine Workers of America v. Bagwell, 512 U.S. 821, 826-27 (1994)); the privilege against self-incrimination ( Boyd v. United States, 116 U.S. 616, 634 (1886)); the presumption of innocence ( Michaelson v. United States ex rel. Chicago, St. P., M O. R. Co., 266 U.S. 42, 66 (1924)); and proof of guilt beyond a reasonable doubt ( Gompers v. Bucks Stove Range Co., 221 U.S. 418, 444 (1911)).
Texas law also provides that proceedings in criminal contempt cases must conform as nearly as practicable to proceedings in criminal cases, Ex parte Sanchez, 703 S.W.2d 955, 957 (Tex. 1986, orig. proceeding), and that the full panoply of process is due persons accused of criminal contempt. See Ex parte Green, 603 S.W.2d 216, 218 n. 3 (Tex. 1980) (fair notice of charges); Ex parte Hiester, 572 S.W.2d 300, 303 (Tex. 1978) (rights to counsel and to confront witnesses); Ex parte Werblud, 536 S.W.2d 542, 547 (Tex. 1976) (privilege against self-incrimination); Cliett v. Hammonds, 305 F.2d 565 (5th Cir. 1962) (guilt beyond a reasonable doubt); Ex parte Elmore, 161 Tex. 585, 342 S.W.2d 558, 561 (1961) (presumption of innocence); Ex parte White, 229 S.W.2d 1002, 1004 (1950) (notice and opportunity to be heard); and Ex parte Scott, 123 S.W.2d 306, 311 (1939) (requirement of information or complaint).
NOTICE THAT CRIMINAL CONTEMPT IS CHARGED
Although FED. R. CRIM. P. 42(b) is not by its terms applicable to contempt adjudications in state court, by way of analogy, the rule illustrates the minimal requirements of notice in non-summary criminal contempt proceedings. See Hopkins v. Jarvis, 648 F.2d 981, 985 (5th Cir. 1981). The notice must state the essential facts that constitute the criminal contempt charged and describe it as such. FED. R. CRIM. P. 42 (b).
The terms of Federal Rule of Criminal Procedure 42(b) provide:
A criminal contempt except as provided in subdivision (a) of this rule shall be prosecuted on notice. The notice shall state the time and place of hearing, allowing a reasonable time for the preparation of the defense, and shall state the essential facts constituting the criminal contempt charged and describe it as such. The notice shall be given orally by the judge in open court in the presence of the defendant or, on application of the United States attorney or of an attorney appointed by the court for that purpose, by an order to show cause or an order of arrest. The defendant is entitled to a trial by jury in any case in which an act of Congress so provides. He is entitled to admission to bail as provided in these rules. If the contempt charged involves disrespect to or criticism of a judge, that judge is disqualified from presiding at the trial or hearing except with the defendant's consent upon a verdict or finding of guilt the court shall enter an order fixing the punishment.
Texas law permits criminal contempt and civil contempt to be incorporated into one proceeding. Tex. Gov't Code Ann. § 21.001; Sanchez, 703 S.W.2d at 957. Nevertheless, a contempt proceeding is considered civil only when the punishment is wholly remedial. Nye v. United States, 313 U.S. 33, 4243 (1941). When the punishment is partly remedial and partly punitive, "the criminal feature of the order is dominant and fixes its character for purposes of review." Id., quoting Union Tool Ca v. Wilson, 259 U.S. 107, 110 (1922).
The essential distinctions between civil and criminal contempt are that:
(1) civil contempt lies for refusal to do a commanded act, while criminal contempt lies for doing some forbidden act;
(2) a judgment of civil contempt is conditional, and may be lifted if the defendant purges himself of the contempt, while punishment for criminal contempt is unconditional;
(3) civil contempt is a facet of the original cause of action, while criminal contempt is a separate cause of action brought in the name of the United States or the State; and (4) the notice for criminal contempt must indicate the criminal nature of the proceeding.Skinner v. White, 505 F.2d 685, 688-89 (5th Cir. 1974) ( citing Gompers v. Buck's Stove and Range Company, 221 U.S. 418, 441-445 (1911)).
The notice in this case states that Petitioner must show cause why she should not be held in contempt for failing to file the reporter's record by the date it was due and punished for failing to do so. It includes no notice that Petitioner is charged with criminal contempt punishable by a prison sentence and a fine. The word "punishment" as used in contempt cases is ambiguous and not indicative that the contempt is criminal. United States v. United Mine Workers, 330 U.S. 258, 297 n. 64 (1947). The conduct which forms the basis for the contempt charge could be the basis for civil coercive contempt proceedings and indeed, civil sanctions of this nature were imposed in several of Petitioner's contempt judgments in addition to the criminal punishment. The notice is inadequate to inform Petitioner that she is charged with criminal contempt. United States v. United Mine Workers, 330 U.S. at 295; Federal Trade Commission v. Gladstone, 450 F.2d 913, 916 (5th Cir. 1971). This defect alone requires that the contempt judgments against Petitioner be vacated. Nevertheless, the Court will assume that after the first criminal contempt judgment was entered, Petitioner had actual notice she could be convicted of criminal contempt Therefore, the Court will consider Petitioner's additional claims.
The Fifth Circuit Court of Appeals upheld a contempt judgment in the case of an attorney charged with one count of petty criminal contempt. See Fahle v. Cornyn, 231 F.3d 193, 196 (5th Cir. 2000). That case is distinguishable because the defendant, an attorney, had adequate notice that he was facing criminal contempt sanctions. Id. Moreover, the proceedings in Fahle were evidently free of the due process and equal protection violations revealed by the record before this Court.
THE RIGHT TO A PUBLIC TRIAL AND NOTICE OF DATE AND TIME OF THE HEARING
The defendant in a criminal contempt proceeding has a right to a public trial. Re Oliver, 333 U.S. at 275. Texas law provides that the proceedings and trials in all courts shall be public. TEX. CODE CRIM P. art. 1.24. The notice to the defendant that he or she is charged with contempt of court must state the time and place of the hearing and allow a reasonable time for the preparation of the defense. FED. R. Civ. P. 42 (b). The notice in this case told Petitioner to file with the Clerk of this Court a sworn affidavit and, if necessary, the affidavits of other persons, on or before a certain date. It stated that the affidavits shall state facts that deny or excuse the contempt, if there are any such facts. It ordered her to also file the reporter's record by the same date.
No date for a public hearing of the criminal contempt charge was ever set. Petitioner requested an evidentiary hearing, but the request was summarily denied in the contempt judgment that was entered approximately one week after the deadline set in the notice and show cause order for filing the reporter's record. The show cause procedure violated Petitioner's right to a public trial and her right to be notified of the date and time of the hearing. For this additional reason, the judgments of contempt are void.
DUE PROCESS REQUIRES AN IMPARTIAL DECISION-MAKER AND EQUAL PROTECTION REQUIRES THAT DIFFERENT LEGAL STANDARDS MAY NOT ARBITRARILY BE APPLIED TO SIMILARLY SITUATED INDIVIDUALSAn impartial decision-maker is an essential component of due process. American Airlines, Inc. v. Allied Pilots Association, 968 F.2d 523, 531 (5th Cir. 1992). A judge may not sua sponte initiate the contempt proceedings, gather the evidence and otherwise act as prosecutor, and then decide all factual and legal issues. Id. In the context of contempt proceedings, the United States Supreme Court has noted that:
[a] fair trial in a fair tribunal is a basic requirement of due process. Fairness of course requires an absence of actual bias in the trial of cases. But our system of law has always endeavored to prevent even the probability of unfairness. . . . Such a stringent rule may sometimes bar trial by judges who have no actual bias and who would do their very best to weigh the scales of justice equally between contending parties. But to perform its high function in the best way justice must satisfy the appearance of justice.' (Citation omitted). . . Fair trials are too important a part of our free society to let prosecuting judges be trial judges of the charges they prefer.In re Murchison, 349 U.S. 133, 136 (1955). In this case, the appellate court initiated the contempt charges, called for affidavits, and then decided all the legal and factual issues.
Respondent argues that the appellate court correctly conducted the contempt proceedings in a summary manner because Petitioner's contempt was direct rather than indirect Direct contempt occurs in the presence of the court, and a contempt may be punished summarily only if the judge recites the facts and certifies that he witnessed the alleged contemptuous conduct and that it was committed in his actual presence. FED. R. Civ. P. 42(a). Constructive contempt occurs in violation of a court order, outside the presence of the court. See Ex parte Chambers, 898 S.W.2d 257, 259 (Tex. 1995). A rule providing for punishments of contempt summarily must be given a "narrow construction" because it provides for punishment without affording the accused the "normal safeguards surrounding criminal prosecutions;" the courts and Congress have demonstrated a definite plan to limit the contempt power to "the least possible power adequate to the end proposed." Cammer v. United States, 350 U.S. 399, 404-405 (1956).
The contempt judgments in this case were all constructive in nature, arising from numerous violations of written court orders over a period of years. The contemptuous acts did not occur in the presence of the court or the public. Additional safeguards are afforded a defendant charged with constructive rather than direct contempt. United States v. Wilson, 421 U.S. 309, 316 (1975). An appellate court may exercise contempt powers when the contempt proceeding is instituted after the appellate court's jurisdiction has attached. Ex parte Werblud, 536 S.W.2d 542, 544 (Tex. 1976) (citations omitted). When the proof of an alleged contempt requires a factual hearing, the preferable procedure in the ordinary case is that the court of appeals retain jurisdiction over the contempt matter, but refer the mailer of taking testimony and hearing evidence to a trial court. Id. The transcript of the hearing is then forwarded to the appeals court. Id.
Each of the ten appeals in which Petitioner was held in contempt involved a determination of facts that occurred outside the court proceedings, e.g., the dates the reporter's records were due, the dates the reporter's records were filed, whether the records were complete, the reasons Petitioner failed to timely file complete reporter's records, whether Petitioner violated court orders and whether she acted wilfully in failing to comply with the orders. The record does not show what happened when the appellate court in this case ordered the trial court to conduct hearings to find out why the records had not been filed. In any event, the appellate court waited years before it issued the show cause orders. Then additional time elapsed while the court perfected service of the show cause orders. Petitioner received no notice of the date and time the appellate court would consider her case. Finally, the appellate court did not enter the contempt judgments for varying periods of time after the deadlines it set in the show cause orders. The periods the appellate court waited before it entered the contempt judgments against Petitioner varied from one week to four months after the deadlines it had previously set. The judgments contain no findings that Petitioner acted wilfully and that Petitioner is guilty of contempt beyond a reasonable doubt. The record does not support the argument that the contempt was direct contempt committed in the presence of the court — the kind of contempt that would have demanded immediate and summary action by the offended judge. The Court finds that Petitioner was charged with constructive contempt and that she was not afforded her due process rights to an impartial decision-maker.
Under the equal protection clause, "no State shall "deny to any person within its jurisdiction the equal protection of the laws' which is essentially a direction that all persons similarly situated should be treated alike." City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439 (1993). An equal protection violation occurs only when different legal standards are arbitrarily applied to similarly situated individuals. Smith v. Seven and North Boone Cmty. Sch. Dist 200, Boone County, 129 F.3d 419, 429 (7th Cir. 1997). Petitioner claims she is similarly situated to officers of the court who are charged with contempt of a trial court, but that because an appellate court charged her with contempt, she was denied the rights available to other officers of the court.
Texas law provides that:
An officer of a court who is held in contempt by a trial court shall, on proper motion filed in the offended court, be released on his own personal recognizance pending a determination of his guilt or innocence. The presiding judge of the administrative judicial region in which the alleged contempt occurred shall assign a judge who is subject to assignment by the presiding judge other than the judge of the offended court to determine the guilt or innocence of the officer of the court.
Tex. Govt. Code § 21.002(d). [Emphasis supplied]. If a trial court had charged Petitioner with contempt, she would have been released on her own recognizance, rather than being required to post a bond. Id. Additionally, a judge — other than a judge of the court that charged her with contempt — would have determined her guilt or innocence. Id. The differences in treatment do not end there. In Texas, contempt convictions may not be appealed. See Collins v. Kegans, 802 S.W.2d 702, 705 (Tex.Crim.App. 1991) (holding that it is "axiomatic" that a judgment of contempt can be reviewed only by habeas corpus). Ordinarily, contempt judgments are reviewable by habeas corpus in Texas. Id. Nonetheless, only when a trial court holds a petitioner in contempt of court does the petitioner have the right to review on habeas corpus. See TEX. R. APP. P. 52.8. Petitioners who are found in contempt by an appellate court must seek leave to file a petition for writ of habeas corpus, and if leave is denied, no review is available. See TEX. R. App. P. 72.2.
In this case, the Texas courts denied Petitioner any review of the contempt judgments. One court not only initiated the contempt proceedings, gathered the evidence and then decided all the legal and factual issues, but that court's decision was final, not only with respect to non-jurisdictional and non-constitutional judicial errors (if any) that would normally result in the reversal of a criminal conviction, but with respect to constitutional errors as well.
Petitioner was denied the same rights as an officer of the court who is charged with contempt by a trial court, i.e., release on her own recognizance, the protection of an impartial decision-maker, and the right of review. The State has not even attempted to show — and this Court has not been able to discern — a rational basis for treating officers of the court differently depending upon whether they are charged with offending a trial court or an appellate court. The criminal contempt judgments are void because they violate Petitioner's right to equal protection of the law, as well as her due process rights.
DUE PROCESS REQUIRES THAT PETITIONER BE NOTIFIED SHE HAS THE RIGHT TO COUNSEL IN A CRIMINAL CONTEMPT PROCEEDING OR THE RIGHT TO HAVE ONE APPOINTED IF SHE IS INDIGENTThe right to counsel is fundamental and essential to a fair trial. See Gideon v. Wainwright, 372 U.S. 335, 342 (1963). The Sixth Amendment right to counsel is not forfeitable, but may only be waived by the conscious and intelligent decision of the person who holds the right. Zerbst, 304 U.S. at 464. The Texas constitution also specifically guarantees the assistance of counsel. TEX. CONST. art. I, § 10. Texas statutes guarantee a defendant the right to counsel in an adversarial judicial proceeding in a criminal matter and guarantee an indigent defendant the right to have an attorney appointed to represent him in any adversary judicial proceeding that may result in punishment by confinement TEX. CODE CRIM PROC. art. 1.051. In Texas a defendant in a criminal contempt proceeding not only has the right to counsel, but the court has the duty to determine whether the defendant is aware of her right to retain an attorney or her right to have counsel appointed if the court determines she is indigent. Ex parte Gonzales, 945 S.W.2d 830, 836 (Tex.Crim.App. 1997). In Gonzales, the Court concluded that a defendant's failure to request counsel does not amount to the voluntary relinquishment or abandonment of a known right. Id. Respondent argues that Petitioner must have known of her right to counsel and waived the right, citing Ex parte McIntyre, 730 S.W.2d 411 (Tex.App.-San Antonio 1987, orig. proceeding). Petitioner admits in her brief that an attorney filed a single motion in two of the ten cases and that she copied the motion in a few of the other cases. Petitioner was not represented by an attorney in eight of the ten contempt proceedings. The record does not show (1) that Petitioner was advised of her right to counsel, (2) that she was advised that counsel would be appointed for her if she was indigent, or (3) that she waived her rights in this regard. Nor does the fact that Petitioner was once a certified court reporter show that she knew of her rights or that she could afford to hire counsel. Waiver cannot be presumed from the mere fact that she did not have an attorney and did not request an attorney. Swenson v. Bosler, 386 U.S. 258, 260 (1967). Petitioner was denied due process by the appellate court's failure to inform her of her rights to an attorney or to have one appointed if she was indigent
Defendant was a court reporter in criminal cases. A defendant is a criminal case is always informed on the record of his right to counsel and the right to have one appointed if he is indigent. The absence of such a warning in Petitioner's case may have led her to conclude she did not have the right to counsel or to have counsel appointed if she was indigent. To conclude that she knew of this right would be pure speculation based upon a silent record.
INADEQUATE NOTICE OF THE CHARGE OF VIOLATION OF THE SHOW CAUSE ORDER
Petitioner contends that she had inadequate notice that she would be held in contempt for violation of the show cause order. This claim also has merit. The adjudication of contempt charges raised for the first time at the contempt proceeding has long been condemned. Skinner v. White, 505 F.2d 685, 690-91 (5th Cir. 1974) ( citing Ex parte Bradley, 7 Wall. 364, 372-73, 19 L.Ed. 214 (1868)). Any person charged with contempt is entitled to the protection of the due process clause. Cooke, 267 U.S. at 537.
The Notice and Order provided that Petitioner show cause why she should not be held in contempt for failing to file the reporter's record by the date it was due. Petitioner was prepared to answer, and did defend herself by explaining her failure to timely file the reporter's record as required by the appellate court's earlier orders. When Petitioner's answer came in, without any further notice or opportunity of defense or explanation, the appellate court punished her for another and distinct offense, violation of the show cause order, an act which necessarily occurred after the notice and show cause order was issued. Petitioner was denied due process because she received constitutionally inadequate notice that she would be adjudicated in contempt for violating the show cause order.
PETITIONER'S OTHER CLAIMS
Petitioner claims that she was entitled to a jury trial on at least some of the contempt charges that were aggregated to result in a fine of over five hundred dollars. She also claims that the procedure employed by the appellate court forced her to testify against herself in violation of her constitutional rights. The Court need not consider these claims in light of its findings that Petitioner's due process and equal protection rights were violated and that the contempt judgments in this case are void.
CONCLUSION
The record indicates that the contempt proceedings in this case did not "conform as nearly as practicable to those in criminal cases." Ex parte Sanchez, 703 S.W.2d 955 (Tex. 1986, orig. proceeding). The notice and proceedings violated Petitioner's constitutional rights to due process and equal protection of the law, and the criminal contempt judgments are void. Petitioner is entitled to be released. Accordingly, IT IS ORDERED, ADJUDGED AND DECREED that Petitioner's petition for a writ of habeas corpus is GRANTED, that Dallas County Sheriff Jim Bowles shall release Petitioner from custody, and that the contempt judgments against Diana Garza Orr issued on July 6, 1998, October 26, 1998, November 5, 1998 and August 30, 1999 are VOID.
A list of the void judgments follows: Ex Parte Diana Garza Orr, Original Contempt Proceeding in Galka v. State, No. 05-96-01394-CR (Tex.App.-Dallas July 6, 1998); Ex Parte Diana Garza Orr, Original Contempt Proceeding in Edwards v. State, No. 05-96-01251-CR (Tex.App. — Dallas Oct. 26, 1998); Ex Parte Diana Garza Orr, Original Contempt Proceeding in Shipman v. State, No. 05-94-01094-CR (Tex.App. — Oct. 26, 1998); Ex Parte Diana Garza Orr, Original Contempt Proceeding in Smith v. State, No. 05-96-01960-CR (Tex.App. — Dallas Oct. 26, 1998); Ex Parte Diana Garza Orr, Original Contempt Proceeding in Williams v. State, No. 05-96-00449-CR (Tex.App. — Dallas Nov. 5, 1998); Ex Parte Diana Garza Orr, Original Contempt Proceeding in Turner v. State, Nos. 05-96-00533 and 00534-CR (Tex.App. — Dallas Nov. 5, 1998); Ex Parte Diana Garza Orr, Original Contempt Proceeding in Burns v. State, Nos. 05-96-01590-01594 CR (Tex.App. — Dallas Nov. 5, 1998); Ex Parte Diana Garza Orr, Original Contempt Proceeding in Inthasone v. State, No. 05-96-01787-CR (Tex.App. — Dallas Nov. 5, 1998); Ex Parte Diana Garza Orr, Original Contempt Proceeding in Gonzales v. State, Nos. 05-97-0231 and 0232 CR (Tex.App. — Dallas Nov. 5, 1998); and Ex Parte Diana Garza Orr, Original Contempt Proceeding in Lopez v. State, No. 05-94-01912-CR (Tex.App. — Dallas Aug. 30, 1999).
The reporter's record was originally due on 11/11/96. The Court of Appeals granted an extension and directed the trial court to conduct a hearing to determine why the record had not been filed. There is no indication of what action, if any, the trial court took. On 9/10/97, the Court of Appeals ordered Petitioner to file the record. When the record had not been filed by 3/27/98, the Court ordered Petitioner to file the record by 5/29/98. This order was timely served on Petitioner. She did not file the record, and the Court issued a show cause order on 6/10/98, directing Petitioner to file the record and affidavits by 7/6/98. ( Exh. "G" to Petitioner's Application for Writ). The order was served on Petitioner on 6/21/98. On 7/6/98, Petitioner filed an "affidavit seeking an extension until July 20, 1998, to file the reporter's record," as well as a motion for release, request for hearing, objection to contempt procedure, request for evidentiary hearing, and invocation of her Fifth Amendment right against self-incrimination. ( Judgment of Contempt 10/26/98, Exh. "H" to Petitioner's Application for Writ). On 7/14/98, Petitioner filed a one-volume reporter's record. The record "did not comply with the format set out in the appendix to the Texas Rules of Appellate Procedure and it contained defects and unintelligible words." ( Id.). On 7/7/98, the Court of Appeals struck the record and ordered Petitioner to retranscribe the notes of the proceedings and file a complete record by 8/17/98. Petitioner did not file the complete record until 9/15/98. The next day, the Court of Appeals ordered Petitioner to "file a brief." ( Id.). No brief was filed. The Court of Appeals issued a Judgment of Contempt that denied Petitioner's motions and requests of 7/6/98, fined her $500 and sentenced her to 10 days in jail. ( Id.).
Ex Parte Diana Garza Orr, Original Contempt Proceeding in Shipman v. State, No. 05-94-01094-CR (Tex.App. — Oct. 26, 1998)
The reporter's record was originally due on 9/4/94. The Court of Appeals granted an extension and ordered the trial court to conduct a hearing to determine why the record had not been filed. The record does not indicate any further action taken by either the trial court or the Court of Appeals until 10/13/97, when the Court of Appeals ordered Petitioner to file the reporter's record within thirty days. There is no indication of any further action by the Court of Appeals until 3/27/98, when it issued another order to file the reporter's record by 5/11/98, warning Petitioner that her failure to file the record by that date may result in the issuance of a show cause order or a judgment of contempt. No reporter's record was filed. The Court of Appeals issued a show cause order on 5/19/98, instructing Petitioner to file the reporter's record and to file "a sworn affidavit and, if necessary, the affidavits of other persons . . . stat[ing] facts that deny or excuse the contempt, if there are any such facts." ( Exh. "A" to Petitioner's Application for Writ). The due date for filing the record and affidavits was 6/5/98. The show cause order, however, was not served on Petitioner before 6/5/98. The Court then issued another show cause order on 6/11/98, setting a due date of 7/20/98. ( Exh. "B" to Petitioner's Application for Writ). This order was timely served. Petitioner filed an incomplete one-volume record on 7/20/98. On 7/21/98, Petitioner filed a "motion for release on recognizance and hearing before assigned judge on charge of contempt," and an "objection to the show cause procedure, request for evidentiary hearing, and invocation of Fifth Amendment right against self-incrimination." ( Id.). On 8/7/98, Petitioner delivered a completed three-volume record. The Court struck the one-volume record and ordered the three-volume record filed. On 10/26/98, the Court of Appeals issued a Judgment of Contempt, stating that Petitioner "failed to comply with the orders of this Court, and especially, the Order to File Reporter's Record and to Show Cause" issued 6/11/98. The Court denied Petitioner's 7/21/98 motions for release and for a hearing regarding the contempt charge. It also denied her objections, requests and invocation of her Fifth Amendment right to self incrimination "to the extent Diana Garcia Orr objects to the show cause procedure and seeks an evidentiary hearing." It ordered Petitioner to pay a $500 fine and imposed a sentence of 10 days to be served at the Dallas County Jail "without the benefit of any additional time credits." ( Id.).
In all of the show cause orders involved in the ten underlying cases, this language appears with regard to the order to file affidavits.
In response to two of the show cause orders, a lawyer filed motions containing these requests, objections, and invocation of Fifth Amendment rights. Petitioner copied the motion in a few of the other cases.
In all of the ten underlying cases, the Court of Appeals denied Petitioner's motions.
In all of the Court of Appeals' Judgment of Contempt orders, the Court used this language when imposing terms of imprisonment.
Ex Parte Diana Garza Orr, Original Contempt Proceeding in Smith v. State, No. 05-96-01960-CR (Tex.App.-Dallas Oct. 26, 1998)
The reporter's record was originally due on 1/10/97. The Court of Appeals ordered the trial court to conduct a hearing to determine why the record had not been filed. There is no indication of what action, if any, the trial court took. On 8/6/97, the Court of Appeals ordered Petitioner to file the reporter's record within 15 days. Petitioner did not file the record. On 3/27/98, the Court of Appeals ordered Petitioner to file the record by 5/18/98. The order was timely served on Petitioner. She did not file the record by the due date. On 5/26/98, the Court issued a show cause order directing Petitioner to file the record and affidavits by 6/15/98. ( Exh. "O" to Petitioner's Application for Writ). This order, however, was not properly served as it was not served on Petitioner until 6/21/98. ( Exh. "P" to Petitioner's Application for Writ). On 6/22/98, the Court issued a show cause order directing Petitioner to file the record and affidavits by 7/24/98. ( Exh. "O" to Petitioner's Application for Writ). This order was served on Petitioner on 6/22/98. On 7/21/98, Petitioner filed a motion for release, request for hearing, objection to contempt procedure, request for evidentiary hearing, and invocation of her Fifth Amendment right against self incrimination. On 7/24/98, Petitioner filed a three-volume reporter's record. "The record did not comply with the format set out in the Texas Rules of Appellate Procedure. Moreover, the record contained defects and unintelligible words and symbols on almost every page." ( Judgment of Contempt 10/26/98, Exh. "P" to Petitioner's Application for Writ). The Court struck the record and ordered Petitioner to file a complete and accurate record by 9/8/98. The order was timely served. Petitioner did not file the record. The Court issued a Judgment of Contempt on 10/26/98, denying Petitioner's motions, request and objections of 7/21/98, fined her $500 and sentenced her to 10 days in jail. ( Id.).
The November 5, 1998 Contempt Proceedings Ex Parte Diana Garza Orr, Original Contempt Proceeding in Williams v. State, No. 05-96-00449-CR (Tex.App.-Dallas Nov. 5, 1998)The reporter's record was originally due on 6/28/96. The Court of Appeals granted two extensions and ordered the trial court to conduct a hearing to determine why the record had not been filed. There is no indication of what action, if any, the trial court took. On 9/11/97 the Court of Appeals ordered Petitioner to file the reporter's record. Apparently, no further action was taken until 3/27/98, when the Court of Appeals again ordered Petitioner to file the reporter's record by 5/15/98. This order was timely served on Petitioner. She failed to file the record by the due date. On 5/26/98, the Court issued an order to show cause, directing Petitioner to file the record and affidavits by 6/8/98. ( Exh. "C" to Petitioner's Application for Writ). The order was never served on Petitioner. She did, however, file the reporter's record on 5/29/98. The Court issued another show cause order on 6/11/98 regarding Petitioner's failure to file the record by 5/15/98. The order directed her to file affidavits by 7/6/98. ( Id.). The order was served on 6/21/98. Petitioner did not file affidavits by the due date, but did file her motion for release, request for hearing, objection to contempt procedure, request for evidentiary hearing, and invocation of her Fifth Amendment right against self-incrimination. The Court denied the motion, requests, and objections on 11/5/98 in its Judgment of Contempt. Petitioner was fined $500 and sentenced to 20 days in jail. ( Exh. "D" to Petitioner's Application for Writ).
Ex Parte Diana Garza Orr, Original Contempt Proceeding in Turner v. State, Nos. 05-96-00533 and 00534-CR (Tex.App. — Dallas Nov. 5, 1998)
The reporter's record was originally due on 7/17/96. The Court of Appeals granted three extensions to file the record and ordered the trial court to conduct a hearing to determine why the record had not been filed. There is no indication of what action, if any, that the trial court took. On 8/20/97 the Court of Appeals ordered Petitioner to file the reporter's record within thirty days. No further action was taken until 3/27/98, when the Court of Appeals again ordered Petitioner to file the record by 5/8/98. Petitioner did not file the record. On 5/14/98 the Court of Appeals issued a show cause order, directing Petitioner to file the record and affidavits before 6/1/98. ( Exh. "E" to Petitioner's Application for Writ). Apparently, the show cause order was never properly served on Petitioner. On 6/2/98, however, Petitioner filed a request for extension of time (referencing the order of 3/27/98) to file the record; she requested the due date be extended to 6/5/98. In the request, Petitioner referenced an affidavit submitted by Mr. Clifton Wayne (apparently in a previous case) which stated that Petitioner had experienced problems with her computer and printer from 5/4/98 to 5/14/98. She then filed the reporter's record on 6/4/98. ( Judgment of Contempt 11/5/98, Exh. "F" to Petitioner's Application for Writ). On 6/10/98 the Court of Appeals issued a show cause order directing Petitioner to show cause why she should not be held in contempt for failing to file the record by 5/8/98. ( Exh. "E" to Petitioner's Application for Writ). The court directed her to file affidavits by 7/6/98. The order was served on Petitioner on 6/21/98. Petitioner did not file affidavits by the due date, but did file her motion for release, request for hearing, objection to contempt procedure, request for evidentiary hearing, and invocation of her Fifth Amendment right against self-incrimination. The Court denied the motion, requests, and objections on 11/5/98 in its Judgment of Contempt. Petitioner was fined $500 and sentenced to 20 days in jail. ( Exh. "F" to Petitioner's Application for Writ).
Ex Parte Diana Garza Orr, Original Contempt Proceeding in Burns v. State, Nos. 05-96-01590-01594 CR (Tex.App. — Dallas Nov. 5, 1998)
The reporter's record was originally due on 1/4/97. The Court of Appeals granted an extension and ordered the trial court to conduct a hearing to determine why the record had not been filed. There is no indication of what action, if any, the trial court took. On 7/11/97, the Court of Appeals ordered Petitioner to file the record by 8/14/97. Apparently, the Court took no further action until 3/27/98 when it ordered Petitioner to file the record by 6/1/98. The order was timely served on Petitioner. The record was not filed by the due date. On 5/9/98 the Court issued a show cause order, directing Petitioner to file the record and affidavits by 7/13/98. ( Exh. "K" to Petitioner's Application for Writ). On 7/14/98, Petitioner filed a four-volume record. "The format of the volumes did not comply with the requirements set out in the appendix to the Texas Rules of Appellate Procedure. Moreover, the symbol ??? appeared on various pages in each of the volumes." ( Judgment of Contempt 11/5/98, Exh. "L" to Petitioner's Application for Writ). The certification of the record was also inadequate. ( Id.). The Court struck the record and ordered Petitioner to re-transcribe the notes of the proceedings and to file the complete record by 8/24/98. The Court's order was timely served on Petitioner. On 7/21/98, Petitioner filed a motion for release, request for hearing, objection to contempt procedure, request for evidentiary hearing, and invocation of her Fifth Amendment right against self-incrimination. Petitioner did not file a complete record by the due date. On 11/5/98, the Court issued a Judgment of Contempt, denying Petitioner's 7/21/98 motions, request and objections. The Court also fined Petitioner $500 and sentenced her to 30 days in jail. It further directed that Petitioner be confined in jail until such time as the complete reporter's record was filed. ( Id.).
Ex Parte Diana Garza Orr, Original Contempt Proceeding in Inthasone v. State, No. 05-96-01787-CR (Tex.App.-Dallas Nov. 5, 1998)
The reporter's record was originally due on 12/16/96. The Court of Appeals granted an extension of time to file the record and ordered the trial court to conduct a hearing to determine why the record had not been filed. There is no indication of what action, if any, the trial court took. On 7/10/97, the Court of Appeals ordered Petitioner to file the record by 8/15/97. No further action was taken until 3/30/98, when the Court of Appeals ordered Petitioner to file the record by 6/5/98. Petitioner did not file the record. On 6/10/98, the Court issued a show cause order, directing Petitioner to file the record and affidavits by 7/17/98. ( Exh. "M" to Petitioner's Application for Writ). The order was timely served on Petitioner. On 7/14/98, Petitioner filed a three-volume record. "The record, however, was incomplete because it did not contain the exhibits admitted during trial." ( Judgment of Contempt 11/5/98, Exh. "N" to Petitioner's Application for Writ). On 7/17/98, the Court ordered Petitioner to supplement the record with the exhibits by filing a supplemental record by 7/31/98. The order was timely served. Petitioner did not file any affidavits, but filed a motion for release, request for hearing, objection to contempt procedure, request for evidentiary hearing, and invocation of her Fifth Amendment right against self incrimination on 7/21/98. On 7/27/98, she filed the supplemental record ordered by the Court. On 8/10/98, the Court issued an order stating that the record was properly filed, and that it would reserve its ruling in the original contempt proceeding. On 11/5/98, the Court issued a Judgment of Contempt, stating that Petitioner had not complied with the Court's previous orders, "especially the Order to File Reporter's Record and to Show Cause" dated 6/10/98. ( Id.). The Court denied Petitioner's motions, request and objections of 7/21/98, fined her $500 and sentenced her to 20 days in jail. ( Id.).
Ex Parte Diana Garza Orr, Original Contempt Proceeding in Gonzales v. State, Nos. 05-97-0231 and 0232 CR (Tex.App. — Dallas Nov. 5, 1998)
The reporter's record was originally due on 3/29/97. The Court of Appeals ordered the trial court to conduct a hearing to determine why the record had not been filed. It is unclear what action, if any, the trial court took. On 9/18/97, the Court of Appeals ordered Petitioner to file the record within 30 days. Apparently, no further action was taken until 3/27/98 when the Court of Appeals again ordered Petitioner to file the record by 5/22/98. The order was timely served on Petitioner. She failed to file the record by the due date. On 6/9/98, the Court issued a show cause order directing Petitioner to file the record and affidavits by 6/22/98. ( Exh. "Q" to Petitioner's Application for Writ). The order, however, was not served on Petitioner until 6/21/98. ( Exh. "R" to Petitioner's Application for Writ). On 6/22/98, the Court issued another show cause order that directed Petitioner to file the record and affidavits by 7/27/98. ( Exh. "Q" to Petitioner's Application for Writ). This order was timely served. On 7/21/98, Petitioner filed a motion for release, request for hearing, objection to contempt procedure, request for evidentiary hearing, and invocation of her Fifth Amendment right against self-incrimination. On 7/27/98 she filed a five-volume reporter's record. "The record did not comply with the format set out in the appendix to the Texas Rules of Appellate Procedure. Moreover, the record contained defects and unintelligible words and symbols on almost every page." ( Judgment of Contempt 11/5/98, Exh. "R" to Petitioner's Application for Writ). On 7/30/98, the Court struck the record and ordered Petitioner to file a complete and accurate record by 9/14/98. The order was timely served. Petitioner failed to file the record by the due date. On 11/5/98, the Court issued a Judgment of Contempt denying Petitioner's motions, request and objections of 7/21/98, fining her $500 and sentencing her to 30 days in jail. The Judgment further provided that Petitioner was to be held at the Dallas County Jail until such time as she filed the complete and accurate reporter's record. ( Id.).
The August 30, 1999 Contempt Proceeding Ex Parte Diana Garza Orr, Original Contempt Proceeding in Lopez v. State, No. 05-94-01912-CR (Tex.App.-Dallas Aug. 30, 1999)The reporter's record was originally due on 3/30/95. The Court of Appeals ordered the trial court to conduct a hearing to determine why the reporter's record had not been filed. There is no indication of what further action, if any, the trial court took. On 7/14/97, the Court of Appeals ordered Petitioner to file her record by 7/29/97. No record was filed. On 6/22/98, the Court again ordered Petitioner to file the record by 7/20/98. Petitioner did file a record by the due date, however, the Court struck the record by order dated 7/24/98, because the record was incomplete and indecipherable. The Court again ordered Petitioner to file a complete record by 8/31/98. The complete record was filed on 2/23/99. Between 8/31/98 and 2/23/99, the Court issued three separate orders to file the record and for Petitioner to show cause why she should not be held in contempt. None of the orders, unfortunately, were served on Petitioner by the date for Petitioner's compliance indicated in the orders. ( Exh. "T" to Petitioner's Application for Writ). After the record was finally filed on 2/23/99, the Court issued three separate orders to show cause, directing Petitioner to file an affidavit, "and, if necessary, the affidavits of others" regarding facts that would excuse or deny Petitioner's failure to timely file the record and comply with prior court orders. These orders were dated 3/9/99, 4/12/99 and 5/14/99. ( Exh. "S" to Petitioner's Application for Writ). Again, the orders dated 3/9/99 and 4/12/99 were not served on Petitioner by the date of compliance indicated in them. Petitioner did not file any affidavits. ( Exh. "T" to Petitioner's Application for Writ). On 8/30/99, the Court issued a Judgment of Contempt based upon Petitioner's repeated violations of orders to file the record and orders to show cause. Petitioner was fined $500 and sentenced to a term of 30 days in jail. ( Id.).
On November 12, 1999 both parties executed in writing their consent for the United States Magistrate Judge to try this matter. On the same date, United States District Judge Sam Lindsey reassigned the case to United States Magistrate Judge Paul D. Stickney.
APPENDIX "B"
THE STATE OF TEXAS NOTICE TO FILE THE REPORTER'S RECORD AND TO SHOW CAUSE
TO: DIANA GARZA ORR, Dallas County, Texas
GREETINGS: WHEREAS, the Court of Appeals, Fifth District of Texas at Dallas on June 10, 1998 made and entered the following order:
"In the Court of Appeals Fifth District of Texas at Dallas No. 05-96-01394-CR
EX PARTE DIANA GARZA ORR
ORIGINAL CONTEMPT PROCEEDING
ORDER TO FILE REPORTER'S RECORD AND TO SHOW CAUSE
The appeal in the above-numbered cause, styled John Joseph Galka v. The State of Texas, has been pending since September 6, 1996. The reporter's record was originally due on September 28, 1996. This Court has previously ordered the trial court to conduct a hearing to determine why the reporter's record has not been filed. We further ordered the trial court to conduct a hearing to determine why appellant's brief has not been filed. On March 27, 1998, we ordered Diana Garza Orr to certify and transmit the reporter's record to this Court by May 26, 1998. The order further provided:
FAILURE OF DIANA GARZA ORR TO FILE THE REPORTER'S RECORD BY THE DATE HEREIN SET FORTH MAY RESULT IN THE ISSUANCE OF A SHOW CAUSE ORDER AND OR A JUDGMENT OF CONTEMPT.
The March 27, 1998 order was personally served on Diana Garza Orr on March 30, 1998. Nevertheless, Diana Garza Orr failed to file the reporter's record in cause number 05-96-01394-CR, styled John Joseph Galka v. The state of Texas, by May 26, 1998.
NOW THEREFORE IT IS ORDERED BY THE COURT OF APPEALS, FIFTH DISTRICT OF TEXAS AT DALLAS, that the said Diana Garza Orr shall show cause why she should not be held in contempt of this Court for failing to file the reporter's record by the date it was due and punished for failing to do so. Diana Garza Orr is ordered to file with the Clerk of this Court a sworn affidavit and, if necessary, the affidavits of other persons, on or before Monday, June 29, 1998. The affidavits shall state facts that deny or excuse the contempt, if there are any such facts. The said Diana Garza Orr shall also file the reporter's record in cause number 05-96-01394-CR., styled John Joseph Galka v. The State of Texas, by Monday, June 29, 1998. DIANA GARZA ORR SHALL PERSONALLY DELIVER THE AFFIDAVIT AND REPORTERS RECORD TO THIS COURT BY MONDAY, JUNE 29, 1998.
It is further ORDERED by this Court that the Clerk of this Court shall issue NOTICE TO FILE THE REPORTER'S RECORD AND TO SHOW CAUSE commanding Diana Garza Orr to show cause, in the manner and within the time specified in this ORDER, why Diana Garza Orr should not be held in contempt of this Court for failing to timely file the reporter's record and punished for her failure to do so. A copy of this ORDER shall accompany the Notice.
IT IS ORDERED ON THIS 10TH DAY OF JUNE, 1998.
PER CURIAM"
A correct and complete copy of the Order of June 10, 1998 is attached to this NOTICE and fully incorporated for all purposes.
NOW THEREFORE, Diana Garza Orr is hereby commanded to file the reporter's record and to show cause, in the manner and within the period specified in the order of June 10, 1998 why you should not be held in contempt of the Court of Appeals, Fifth District of Texas at Dallas and punished for failing to do so.
WITNESS BY HAND and the Seal of the Court of Appeals, Fifth District of Texas, at the City of Dallas, on this the 10th day of June, 1998.
[Signature]