*1 same default. To do so would be to legis-
late a beyond sanction that which the Leg-
islature expressly provided has for such con-
temptuous conduct.
Accordingly, applicant is entitled to relief
from the restraint and imposed detention 16,1983 the March holding him in
contempt for refusal to produce documents
before the grand jury, but not from pay-
ment of a fine in the of one amount hun-
dred dollars.6
Therefore, applicant discharged from
so much of the order contempt of that
commits him to the Williamson County Jail
“until he willing said produce docu-
ments in compliance with the Order of the
Court and the said Jury subpoenas Grand
duces tecum” that are described therein. DUNCAN, Judge,
Honorable Jimmie
County Criminal Court Law at No. County, Applicant,
3 of Harris EVANS,
Honorable Frank G. Chief Jus-
tice, Appeals, Supreme First Houston, al.,
Judicial et District Re-
spondents.
No. 69113. Texas,
Court of
En Banc.
June 1983. corpus subpoena produc- In his habeas duces tecum whether he had applicant produced record, answered, “would show that he all ed “I have attorney’s pos- records in his and/or his produced everything [sic] that I have.” comply session and cannot further... but he However, respect disobeying to his with showing. has not made that Each motion to subpoena produce records of Grain Produc- quash subpoena duces tecum asserted that “the ers, Inc., express grave doubts that in the we requested longer posses- records are no registered capacity he has in which served — currently sion of the Defendant but are under agent corporation was even — care, custody, of his control attor- subpoena doing capable that which the de- ney. grand jury Appearing ..” before the manded. being described in a asked as each item
39 responsibili- to the appeals courts of enforce for an appellate counsel ty of appointed filing of an to insure the indigent appellant appellate brief? State, (Tex. 631 761
In Picard v. S.W.2d 1981), Ap- of App. Beaumont, the Court — peals stated: “Having accepted responsibility the Court, to we will delegated and this duty enforce- make use of such tools for the Duncan, Jimmie se. pro ment are available responsibility of the as Mattox, Tex., Jim of David R. Atty. Gen. State, page at supra, to us.” Picard Richards, and Atty. Executive Asst. Gen. 764. Keller, Gen., Austin, Mary Atty. P. Asst. exists as Because of the confusion which respondents. for available, are it is a concom- to what “tools” Huttash, Atty., Robert Alfred State’s of to deline- responsibility mitant the Court Walker, Asst. State’s Atty., Austin, for the remove, possible, and if ate those “tools” State. due any may which have occurred confusion to our pronouncements. own of holdings the we must address Initially, (Tex. 119 Guillory v. OPINION to the their Cr.App.1977), applicability and McCORMICK, Judge. order In its promulgating instant issue. original prohi- herein, This for writ of on application respondent court relied Guil- the bition arises to Pro- the Stay from an “Order in to remove lory ordering of of and substitute ceedings” attorney appoint the First Court recalcitrant However, be read directing judge County Guillory the of the must counsel. proce at Law to County appellant Court No. 3 of Harris context of the within the attorney remove a in a case the its rendition. court-appointed dures existent at time of court, ap- fact, supra, before the and in the Court Picard Duncan, all point disposal another attorney. Applicant may noted that it not have at of the con- Judge county judge affected available a trial of the remedies to jurisdiction supra, tends that he has no to take the Guillory. Picard outlined action ordered by respondents. page 764, footnote at hurdle jurisdictional of the
Although
appear
it has been made to
Because
V.A.C.C.P.,
44.11,
when
imposed
in another cause
Article
number before this Court
of
is
the Court
respondent
record
filed in
appellate
the
court has vacated its
the
authority
order,
court without
Appeals,
such is
record
the trial
not reflected
the
except
pursuant
as to bond
to act further
showing,
herein. Absent such affirmative
44.04,
effect
not
Article
V.A.C.C.P. The
presume
Compare
we should
mootness.
Proceed
Stay
“Order to
respondent court’s
Garza
Court
ings” was to retain
case
do an
Appeals, yet
presented in this case is akin to
The issue
Thus, the
authority
do.
he had no
act
in the
recently
others which have arisen
re
may
Guillory
“the
option of
courts of
See Ex
appeals.
various
a substitute
attorney
lieve the
Gray,
Courts
to the
is unavailable
attorney”
Ganne,
(Tex.App.
and In re
Appeals.
—Austin, 1982).
into the formula-
Distilled
44.-
Article
Likewise,
argument that
issue
we must address
tion of an
which
courts
37, V.A.C.C.P., allowing
to the
What
is available
authority
this:
to “make such orders as
law
CLINTON, J.,
nature
joins the
opinion
may
require,” authorizes
except
such
paragraph
second
action
grant
must fail. This
thereof.
authority to
courts
juris-
does not reinvest
ONION, Presiding Judge, dissenting.
diction in the trial court.
This is an
prohibi-
for writ
*3
tion seeking
jurisdic-
to invoke the original
thereof,
In lieu
Appeals
the Court of
V,
5,
tion of this court. Article
Texas
§
may in
this,
a case such as
where the right
Constitution, as amended 1977. The appli-
of an indigent defendant
the
to
effective
cant seeks
writ
prohibit respondents
the
assistance of counsel
issue,
on
is in
appeal
from
an
enforcing
Stay
“Order to
Proceed-
abate the appeal and
the
instruct
trial court
ings”
the
directing
applicant
judge of
as
the
to assure
protection
the
right.
of that
By
trial court
to remove a court-appointed
abating
appeal,
jurisdiction may be
counsel in a
case
the Court
before
properly
returned to the trial
and the
of Appeals,
to appoint
and
another attor-
trial court will have
to it all
available
of the
ney. Applicant
county
contends the
options delineated in Guillory. “After re
judge
of which
the duly
he is
elected
has no
ceipt
court’s mandate of
jurisdiction to take the action ordered by
abatement,
the trial court still has control
respondents. The
respondents
order of the
over the
until
the supplemental record
for
application
attached to
writ of
again
the appellate
reaches
court.” 26 Tex.
prohibition.
unsigned
It
an
and uncerti-
Jur.,
Law,
4195,
page
Section
fied copy.
following
See the
eases in which we said the
It appears
Hicks was
Cleveland
convicted
abatement should be
as if
appeal
treated
no
by a jury of criminal
a Class B
trespass,
had been
filed
the appellate court: San
misdemeanor, in County Criminal Court at
State,
chez v.
(Tex.Cr.App.1970);
State,
v.
Weeks
459
ris County jail. Notice of
was
appeal
given
S.W.2d 639
Akin
(Tex.Cr.App.1970);
and
appointed by applicant
Ben Durant was
State,
652,
653
counsel on
The appel-
Hicks.
1971); Heiliger
State,
41 The Court of (respondents) granted when the becomes moot the case is Hicks’ motion and vacated its earlier order Sanchez, dismissed. Ex 145 parte Tex. of March 21st directing trial court (ap- 48, Cr.R. 165 743 (Tex.Cr.App.1942); S.W.2d plicant) to remove appointed counsel and Marks, 561, Ex 144 parte Tex.Cr.R. appoint other counsel. 184 (Tex.Cr.App.1942); parte S.W.2d Ex 578,
Further Duncan, Spivey, in Hicks v. 144 Tex.Cr.R. 871 (Tex.App. 1983), Houston Strawn, Court of Ex Appeals stated in its opinion involving an 377, 175 (Tex.Cr.App. Tex.Cr.R. S.W.2d 417 application for writ of mandamus: rule, a general As neither this court “... April 1983, appellant Supreme nor the Court of Texas write ad [0]n
filed a motion with this court
repre-
to be
visory opinions. Donahoo v.
162 Tex.
Moeller,
sented
Leta J.
as retained
Cr.R.
In Gist, LeBlanc v. 841, 843 another before this court it is (Tex.Cr.App.1980), this court wrote: respondents revealed that the have vacated
“A
prohibition
very
order and
directions to the
process
appli
by which a superior
of,
court prevents
complained
inferi-
cant here
that mootness can
courts, tribunals,
or
officers,
persons
or
presumed
not be
because this court cannot
from usurping or exercising jurisdiction
look to the other record and consider any
with which they have not been vested.
thing
although
therein
it is clearly aware of
State ex rel.
Clawson,
Vance v.
465 the same. The
compare
reader is asked to
S.W.2d 164 (Tex.Cr.App.1971), cert. den.
Garza v.
S.W.2d 85
182;
U.S.
S.Ct.
30 L.Ed.2d
C.J.S.,
1, p.
Prohibition
9. The writ
§
Garza was an unfortunate
by
decision
of prohibition
prevent
issues to
the com-
majority
then
of this court. There two
mission of a
undo,
future act and not to
defendants, separately indicted,
joint-
were
or
nullify,
review an act already per-
ly tried by order of the trial court. On
formed.
It will not be granted when the
original submission Garza’s conviction was
sought
act
to be prevented is already
reversed
a panel because the court erred
accomplished but will be when such act is
in
failing
grant
quash
his motion to
full,
not a
complete and accomplished act.
Ferguson’s
indictment. Co-defendant
con-
Clawson,
State ex rel. Vance v.
supra;
viction was reversed for the same reason.
Blackwell,
State ex rel.
Smith
banc,
en
rehearing,
majority
On
af-
97 73 C.J.S.
firmed the conviction because Garza made
10c,
Prohibition
p. 30.”
§
no
quash
motion to
as reflected
question
Aside from the
appropri
majority
record in his cause and the
would
prohibition
ateness of
as a remedy, the or
not look to
record.
Ferguson’s
der involved has been vacated and the ques
presented
common,
tion
is moot. There is
Joint trials are now
and when
pres
not
ently
justiciable
a
controversy. Normally
two or more appellants appeal, the records
arrive in the appellate
sometimes to-
ed the
purpose
of having the
gether, sometimes not. Frequently there is
put
into
State
the record the testimony
only one statement of
joint
facts from the
“judicially noticed.”
also Bradley
trial and in the record without a statement
State, 608
(Tex.Cr.App.1980).
S.W.2d 652
of facts reference is made to the case with
laughable
It is
present
then to see the
the statement of facts. This court has had majority say that while another
record
difficulty
using the same statement of
shows the order in question in the instant
facts in disposing
of both
including
vacated,
case has been
that record can’t be
challenges to the
sufficiency
evi-
considered, and mootness will not be as-
dence.
sumed, or fail to take any action to seek
Barrientez v.
Earlier in the first Bradley Bradley DAVIS, J., joins opinion. this W.C. 727 (Tex.Cr.App.1978), testimony of the case previously tried of “judicial which notice” was taken was not
in the record on from the revocation
and there was no other record to
turn to as the trial resulted in previous had majority
a mistrial. The of this court abat-