Ex Parte Elliott

762

court, Johnston, purpose it is not the or intent to 404 (Tex.Civ.App. S.W.2d 870 controls, act which 1966, writ). the act itself —Amarillo no must be such as contempt amounts to prayed granted. relief for is parte Bailey, Ex court. 142 Tex.Cr.R. judgment contempt is set aside. 582, (1941); 155 S.W.2d 927 Dowdle, 536, 165 Tex.Cr.R. 309 S.W.2d WHITE, J., concurs. (1958).

458

“The ‘contempt’ essence of is that the

conduct obstructs or tends to obstruct proper justice. administration of

parte Salfen, (Tex.Cr. 618 S.W.2d 766 Rose,

App.1981).” See also 704 751, (Tex.Cr.App.1984). While the conduct of the Jack Fenner ELLIOTT. attorney may commendable,5 not have been No. 69964. irritating and while it have been Court of Appeals Criminal of Texas. exasperating judge, even to the trial it did progress not hinder the forward of the trial 24, Feb. or obstruct or tend to obstruct the adminis- justice. conclude, tration of We cannot circumstances, all the phrase get

“that can’t to” contained the unfin-

ished disrespect sentence constituted

the trial court such support judg- as ‍​​​​‌‌​​​‌​‌‌‌‌‌‌‌‌​​‌​‌‌‌‌‌‌‌‌‌‌​‌​​‌​​‌‌‌‌‌​‌‌‍to Thornton, Deramus v. contempt.

ment of Tex.Jur.3rd, See also Contempt, 57, p. 262.

It original should be observed

contempt order and the show cause order used, language

were based on the actual

and did not include reference

attitude, expression demeanor or

applicant Pink using language Sentell, Cf. 252,

noted. 153 Tex. (Tex.1954). This is not a attorney

case where the held in con

tempt failing obey an order of the approach

court to take his seat or not to stand. Cf. Cren

the witness

shaw, 96 Tex.Cr.R. 259 S.W. 587

(1924). guard

“Trial courts ... must be on

against confusing offenses to their sensibil

ities with obstruction to the administration States, justice.” Brown v. United (1958).

U.S. 78 S.Ct. 2 L.Ed.2d 589

“Contempt strong it cau medicine. Use

tiously as a last resort.” Willson 10,259-92 (Motion contempt for Leave to File

5. In is no Writ No. matters of Pink, 27, 1988). stranger Corpus to this Court. See Ex Habeas denied—Jan. Writ of Pink, (Tex.Cr.App.1982); S.W.2d 262 Code, 47.03(a)(2), to a nal and sentenced § seven-year of confinement in the Tex- term Department of five- as Corrections with Applicant has since thousand dollar fine. serving on parole released after been part of remains “in custo- his sentence but purposes application.1 of this dy” in Applicant asserts that indictment 349,395-B fundamental- cause number ly as it did not defective or recorded “a bet or offer to cant received 47.03(a)(2),supra. agree See We § grant requested relief. Initially, we note that if the indict fundamentally ment the case at bar defective, offense charge as an so Texas, indictment against the laws challenged post-conviction may be in a writ Bartmess, 739 corpus. of habeas v. (Tex.Cr.App.1987); Standley (Tex.Cr.App.1975); 517 S.W.2d 538 Roberts, (Tex.Cr. 522 S.W.2d 461 present in the App.1975). indictment ‍​​​​‌‌​​​‌​‌‌‌‌‌‌‌‌​​‌​‌‌‌‌‌‌‌‌‌‌​‌​​‌​​‌‌‌‌‌​‌‌‍pertinent part case states did:

intentionally knowingly receive bet, over the and offer record event, telephone, sporting on a to-wit: Bruder, Dallas, Mеlvyn for appel- Carson game played between football lant. (sic) Pittsburg Cleveland Steelers and 22, 1981, from a on November Jr., Browns Holmes, Atty., John B. Dist. Deborah Jury only to the Grand Hartmann, person known A. Asst. S. Williams & Calvin 77. Huttash, Player as Houston, Attys., Dist. Robert Austin, presented Atty., State. Harris State’s It further Texas, EL- FENNER

County, JACK Defendant, LIOTT, styled the hereafter OPINION 22, heretofore on about NOVEMBER DAVIS, Judge. W.C. unlawfully 1981, in- then and there did knowingly receive and application tentionally This is an for a writ bet, 11.07, person, on a pursuant to V.A. offer to corpus habeаs Art. record and event, game sporting to-wit: football Applicant the of C.C.P. was convicted Pittsburg (sic) Steelers V.T.C.A., played gambling promotion, Pe- between fense of Moreover, longer 42.18, V.A.C.C.P., (1988) 2(a) is no the fact that Vernon § 1. Art. parole pris- actually penitentiaiy is dis- statutorily as defines a release confined legal us, imprisonment, during from the standing oner from custody before since positive of his addition, of the State. custody" parole "in and "con he is his term of V.A.C.C.P., 8(a), Sep- into effect which went § statutory See construction. fined” terms replaced effectively a sim- tember 1987 and See also V.A.C.C.P. 15(f)(3), provision repealed ilar Henderson, (Tex.Cr.App.1983); 645 S.W.2d pertinent part: states in Peel, (Tex.Cr.App. parole Every prisoner on shall remain while Renter, 1982). compare Ex See legal custody be and shall State (Tex.Cr.App.1987). S.W.2d 349 supervision or- to conditions of amenable by the dered board. Cleveland Browns November received a or offer bet from a known bet, or that he recorded a bet or offer to Jury Player Grand bet, the indictment fails to state violation gambling promotion laws. There- valid, To indictment must fore, it is fundamentally defective. charge each essential element the of sought charged. fense to be Chance See application for writ of habeas State, (Tex.Cr.App.1978); S.W.2d 812 granted, prosecution and the under the Cannon, (Tex.Cr. 546 S.W.2d 266 349,- indictment in trial court cause number Jones, App.1976); 542 S.W.2d 179 395-B is hereby copy dismissed. A of this (Tex.Cr.App.1976); Standley, supra. It is opinion shall be sent ‍​​​​‌‌​​​‌​‌‌‌‌‌‌‌‌​​‌​‌‌‌‌‌‌‌‌‌‌​‌​​‌​​‌‌‌‌‌​‌‌‍to the of Par- Board obvious that the above-mentioned indict dons and Paroles. ment fails to received

or recorded or “a bet offer to In MILLER, J. concurs the result. alleging of stead received or re TEAGUE, Judge, dissenting. bet, corded an offer to al indictment leged that he did “receive and record anci reasons, respectfully for dissent several sporting offer to bet a ... on event.”2 namely, majority opinion this Court’s does bar, The indictment in the case when at not subscribe to what a of this order, logical allеges read in its appli recently expressly stated and held in cant “received and recorded and offered to Renier, (Tex.Cr. 734 S.W.2d 349 a sporting bet on event.” Read overrule App.1987); does expressly not fashion, logical the indictment does not al Renier, supra; erroneously lege “received and re grants Elliott, ap Jack Fenner hereinafter bet,” a bet to corded or offer which would plicant, wrong theory. relief on the necessary be allege gambling promotion to ¶. 47.03(a)(2), supra. Adley See § This is an application post-convic- for the State, 240 (Tex.App.1984), S.W.2d tion writ of habeas filed on State, v. Odom (Tex.Cr. 628 S.W.2d 804 of applicant by behalf In order counsel. to State, App.1982); Rush v. jurisdiction invoke Court’s (Tex.Cr.App.1978). The or bet offer bet 11.07, V.A.C.C.P., provisions of Art. all is an essential element of the offense of Applicant counsel is asserts that “The gambling promotion must and therefore be currently liberty is of restained his and is See Smith v. pled proved. custody in the constructive of O.L. Cot-Mе (Tex.Cr.App.1983); Jeffers [sic], Department ter Director of Texas State, (Tex.Cr.App.1983); S.W.2d 185 Corrections, having of on been released Odom, Rush, Adley, supra; supra; serving (7) parole part after a of seven "... on a post-action phrase, The sporting year sentence assessed after his conviction event, game played to-wit: a football be gambling promotion [trial court] (sic) the Pittsburg tween Steelers 349,395. No. Additionally, Cause Peti- 22, 1981, Cleveland Browns on November suffering tioner disabilities as a rеsult from a known to the Grand Applicant, sentence.” Jury Player 77,” as does not furnish however, specifically never informs us of receiving fatal omission. act The or presently on or “parole” what kind of he is recording game sporting or event football parole, the terms and conditions of that simply gambling not a violation specifically inform us of what promotion 47.03(a)(2). law. Section might presently suffer- he be “disabilities” bet, read, V.T.C.A., Literally majori- A as this ing. Penal Court’s defined Code, 47.01(1) that, agreemеnt ty opinion is an de- § read, pending chance, way or is the it must one stands to win states are not something lose provisions In the instant value. case, is suf- allegation in with a defendant absent an the indictment concerned whether 47.03(a)(2). "offering The act bet” is not an offense denounced fering legal conse- that he attacks. This Court adverse collateral orders legal quences or adverse disabilities as a dismissed and the Clerk of indictment felony he result conviction that copy of this Cоurt to send sustained, validity of which he have Board, Board of Pardons Paroles. statute, read, challenges; literaly ex- lawsuit, party is, which is not a to this pressly limits itself whether a understandably, any- ordered do “custody”, iswho then in and has suffered thing. supposed is the Board to do What conviction, final or sustained a entitled copy of this when it receives “custody” be released from because opinion? majority opinion does not legal conviction is void some reason. order Board to terminаte record is clear parole. Legally, what must it do actually physically cant is or confined copy opinion? receives a of this Court’s restrained, as those terms are customar- understood, ily normally expressly following: this Court stated the has been from “confinement” to released applicant “Article 11.07 is reserved parole, majority opinion nevertheless the ‘confinement,’ by definition is a grants him relief. Given this Court what ” (353). harsher condition than ‘restraint.’ expressly once statеd not but several times opinion any not allow for majority did Renier, of majority opinion in its Thus, exceptions its to statement. regarding supra, requirement the that a Renier, supra, applicant if is not may prior felony not attack “confined”, is merely under some form pursuant provisions conviction to the “restraint”, he cannot seek relief from 11.07, “confined”, supra, unless Art. he is pursuant alleged felony void provi- why applicant is entitled use the to 11.07, supra, to Art. in this Court. He 11.07, supra, sions of Art. to invoke this fоrum. must seek relief another jurisdiction to relief? obtain question applicant is There is no that I believe the bar of bench and this “restrained”, as that is defined word are inappli- State entitled to more than an 11.22, “By Art. V.A.C.C.P. ‘restraint’ explanation, (inapplicable, cable footnote in- person kind of one meant the control which alia, majority ter of what because this another, him not to confine exercises over expressly Court stated held in limits, subject him to within to certain but Renier, suprа,), applicant, why this general power of the authority the “confined”, relief, is not to who entitled However, is person claiming right.” why the who also The word “con- “confined,” “confined”? was was not entitled to Chapter pursuant fined” is not defined in supra, relief to Art. as a Procedure, majority of this Court so held any nor other Code of Criminal Code, nor Penal supra. place the in the Code Art. V.A.C. matter. expressly A of this Court stated ‘confined’, C.P., ‘im- “The states that words Renier, in that before one ‘confinement’, ‘im- custody’, prisoned’, ‘in might felony from prior seek relief void actual, only to the prisonment’, refer not Court, pursuant this to conviction from per- corporeal and forcible detention 11.07, supra, “finally Art. he be must both son, measures to coerceive but likewise If individu- convicted” and “confined.” the threats, injury, fear of menaces or the pre-requisites, two he al satisfies those person control whereby one exercises must further establish that this Court has another, him detains over the release authority to “order his from limits”, nothing in this I find within certain alleged custody.” Applicant has not might or indicate reflect record that anyone, nor custody” he is in the “actual being “any coer- subjective applicant is he will be re- has this Court ordered that threats, menaces or legal cive measures any and all col- leased from adverse injury.” fear of consequences lateral void conviction 11.07, supra, literally Art. read even if agreed this Court appli had with in Ex cant he would have mаjority opinion construed been entitled release Renier, mandates that before course, from confinement. Of at that time provisions statute be had Court birth in its “Labo give jurisdic- order to invoked ratory of Horrors” twisted creature tion, suffering must the individual be parte Renier, I have also a “final conviction” and also “in must be Peel, “seen” find confinement”, or, if not in actual confine- There, help. also of no who ment, he subject must “coercive mea- was then incarcerated a Federal Correc by threats, sures menaces fear of Institution, tional and who owed still injury.” As the terms “confined” and “time”, State of Texas asserted defined, custody” “constructive are grant entitled consideration for the status, application, cant’s as set forth in his good of additional conduct credit on his meet either definition. Texas sentence while in the incarcerated any explanation, Without Federal For Correctional Institution. rea footnote, opinion, in appli advisеs us opinion, sons stated in its this Court cor “ custody’ ‘in cant and ‘confined’ in rectly applicant any denied relief. The de (Fn. 1, of statutory terms construction.” sought fendant Peel also relief 763). p. us It then advises to “See 11.07, supra, Court considered 11.21, supra, V.A.C.C.P.” application pursuant to that statute. however, help is of no is However, nothing there is “in by terms of that statute custo that discusses the that had this fact even dy”. footnote, in majority, the same agreed Court with the defendant it would ‍​​​​‌‌​​​‌​‌‌‌‌‌‌‌‌​​‌​‌‌‌‌‌‌‌‌‌‌​‌​​‌​​‌‌‌‌‌​‌‌‍parte then tells us to “Seе also Ex any have ordered him released from con Henderson, (Tex.Cr.App. might suffering. that finement Peel, 1983); parte Ex 626 S.W.2d 767 Again, the monster Re- parte creature Ex (Tex.Cr.App.1982).” I have “seen” those nier, supra, had not been birth then opinions, they two but find are also of no majority opinion lastly this Court. The Henderson, parte Ex help. supra, In in its us to “See com footnote advises peniten defendant was released from the pare [supra].” parte Ex tiary supervision, mandatory on which was pаrte if Under Ex supra, this provisions subsequently By the revoked. meets the above Court finds V.A.C.C.P., 42.12, 2(d), a Art. convict pre-requisites, finds there is no and also on penitentiary released from the “Manda hearing, finds in need for a and further tory Supervision” is not released from the favor, enter “the court shall its legal custody of the State. He still re release, ordering his as the judgment ... legal custody mains within the of the State. Although may justify.” facts law and sought The defendant Henderson to have present majority of this Court believes “goоd his sentence credited with the con though supra, Art. be read as should prior duct time” he had accrued to his vaccuum, this it doesn’t cause mandatory supervision. on This release when it to it believes even adhere what merely provisions Court looked to the applicant’s indictment. merely sets aside 6181-1, V.A.C.S., 4, Sec. and concluded agreed ap- with has majority an inmate provision, that “Under this felony plicant prior his conviction mandatory supervision is released on void, him from releаsed it does not order express condi he thereafter violates the custody, which is understandable release, subsequent upon tions rev parole? custody. Is he still on he is not in mandatory supervision the con ocation does not opinion order good previously all con vict loses accrued him terminated, re- not order parole does (472). Although the defend duct time.” parole supervision, and leased from brought pursuant to ant’s contention was of Par- the Board not set whаtever single one aside supra, there is not doing! or is now has done relating dons and Paroles word of discussion to the fact that Paroles, days is the Board of Pardons a return What dict that we will see suit, entity party is not Briggs, State v. this law Tex.Cr.R. supposed copy (1961), to do when it receives a when it neces- became opinion? Court, protect this Court’s sary for order to its “turf”, meaning give the law a never expressly Given what Court stated imagined I man. before mortal will Renter, parte and held in Ex supra, it pоse very simple question: Assuming appears to me that this is in the granted petition that this Court has wrong courthouse. He be entitled to discretionary judg- review affirms courthouse, seek relief in another un- court, ment of trial and the Renter, der supra, doors custody is then on nor who bail open are not to him. courthouse at subject deprivation freedom However, is the majority now time, original appli- files thereafter convinced, silentio, sub erred for writ of habeas with the cation expressly whаt it stated held judge trial or some other district court Renter, supra, ready and is now Renter, supra, judge, what put post-conviction cor- writ habeas prevent judge granting the is to pus train back the track that it was on? relief, by this without review so, just simply If it should silentio sub By relinquishing Court? this Court Renter, overrule supra, in a foot- Renter, position “King its supra, note; large print do it should so in post- of the Mountain” when it comes body opinion. claims, predict I that we will also Renter, carefully If reads one era. see a rеturn to another kind of previously and what this has Nebraska, Case v. 381 U.S. brought pursu- written in cases that were (1965), 14 L.Ed.2d 422 the Su- S.Ct. ant to believe he will held preme Court of the United States Renter, find as I have that requires that the Fourteenth Amendment application turns the for the writ of habeas prisoners afford state the States must corpus (post-conviction) on its head in the adequate process corrective the some interprets manner in it which hearing of and determination of claims vio- supra. guarantеes. constitutional lation federal repeat I will not here all of I stated what filed, concurring opinion he In the that in Ex dissenting opinion I that filed expressed pleasure his in Justice Clark Renter, However, I will re- learning many that States of the Union so peat here the statement that “Our habeas provided procedure for had at that time corpus law has maintained basic struc- [its] in state courts testing claims the federal Nevertheless, years. ture for at least 130 relieving the courts of “thus federal and original appel- the distinction between ever-increasing this burden.” blurred, jurisdiction late has become often enacted the Illinois Post- In 1949 Illinois due no small measure enactment Hearing Act the and became in 1943 Conviction of what now Sec. judicial machinery (358). its upgrade it is first state I believe sufficient V.A.C.C.P.” new, creating postconviction modem given history habeas state that the states had remedy. By twelve more corpus State, deci- in this and this Court’s principal postconviction 11.07, suрra, pursuant sions created new decided or enactment of a statute remedy that the apparent anyone it almost should be rule court. Texas promulgation has this Legislature the of this State Art. 11.- states any one of those when jurisdiction to became Court exclusive resolve January void, 07, effective on supra, became prior felony claim that a decision of post-convic- This matter other that (Tex.Cr.App.1967), Renter, Young, In S.W.2d tion for relief. claim groundwork that it would this laid the relinquished this Court that authori- court, Court, would ulti- Renter, other that pre- and no After ty. mately post-conviction claims. decide receive record or offer to bet.” The supra, however, changed jury’s all verdict “We, reflects following: the of that. jury, the find the Jack Fenner Elliott, guilty gambling promotion question There be no in very should charged in the indictment.” recent Court “tightened up” times this has to deciding post-conviction opinion when it comes asserts that when claims for the indictment is prece logical order, relief. “read in its without dent, alleges Holt, this Court ‘received and re- [it] corded offered (Tex.Cr.App.1987), to bet’ on a sporting held that (At page 765.). event.” though even was obvious that the de fendant was Department confined years ago, Over 100 prede- this Court’s Corrections, application his was neverthe cessor, the Texas of Appeals, Court stated less express dismissed failed to following Martin 40 Tex. ly specifically allege therein that he (1874): Rep. 19 was “confined” and failed tо expressly and First, objected use of the specifically suffering that he was conjunction ‘and’ before word ‘as- Also see legal consequences. adverse charged sault’ with com- [defendant parte Cacopardo, (Tex.Cr. mitting assault”], “and instead of the App.1987), unpublished another opinion by ‘an,’ destroys article the sense of the Thus, given this Court. charge and But that vitiates it. this is a supra, and doing, what Court has been apparent, mere clerical mistake seems cause, and the facts why does this and the sound of two words is so Court petition? Why entertain nearly reading the same it could appli continue to entertain scarcely Moreover, be misunderstood. (post- cations for the writ habeas defect, important, if deemed conviction) to Art. specifically pointed should have been out grant it does not and cannot exceptions, was not done. outright release, when it even (21). sustains his contention? reading So much the indictment “in its conviction, upon appli- attack illogical order”. (1) cant charge asserts “Under Therefore, “logical in its when read or- court, general trial verdict of the der”, error, the without the clerical indict- jury may upon have rested an unconstitu- alleges part pertinent ment (2) ground” tional “The indictment fails an offer cant recorded] “receive[d] against to state an offense the laws 47.03(a)(2) One of ways State of Texas.” The might be if person violated is intentional- holds that “the indictment does not or ly knowingly or records аn “receives that the ‘received and recorded a Adley, held offer to that the bet,' bet or offer to which neces- would be “receiving” part of was uncon- the statute sary allege gambling promotion under stitutional. Adley 47.03(a)(2),supra,” and that under § long for so Court has held This State, v. 718 682 (Tex.Cr.App.1986), the pleading no error in offense in there is 47.03(a)(2), pro- which held that which § instructing conjunctive jury the the receiving a scribed bet was unconstitution- disjunctive authority the citation ally penal vague and unenforсeable aas necessary very now a for what is ele- sanction, applicant relief. entitled to However, mentary principle of law. Applicant charged by obviously was indictment caused principle law that with, alia, “receiving recording erroneously inter court to instruct the the trial however, the jury, offer to bet.” The wherever word “and” jury, because [sic] indictment, alia, instructed, he used the appeared was inter that it could find the instead, permitting thus if he “did “or” guilty disjunctive it found that mаking applicant of an knowingly jury then to convict intentionally and there or the

769 1983), (5th bet, Estelle, F.2d 157 Tarpley is no crime in our Penal v. offer to (5th Estelle, judge, if 709 F.2d Unquestionably, the trial Plunkett v. Code. Cir.1983), 643 F.2d charge jury, Phelps, had stated “received v. Tyler ‍​​​​‌‌​​​‌​‌‌‌‌‌‌‌‌​​‌​‌‌‌‌‌‌‌‌‌‌​‌​​‌​​‌‌‌‌‌​‌‌‍the Cir.1981). (5th recorded an offer to bet” he would have Also or (Tex.Cr.App. correctly jury Maldonado, instructed the on what basis 688 S.W.2d applicant guilty. found they 1985). could have instance, jury instructed jury

In this the was the A that allows jury instruction “application” paragraph in the the cоmmitting some- convict an accused charge you if from that “Now find ailing that thing not a crime is so which is that on beyond evidence a reasonable doubt any resulting convictionto violate it causes November, day 22nd or about the The effect of the process due of law. Texas, County, in Harris charge per- “application” paragraph in this Elliott, there Jack Fenner did then and applicant guilty find jury mitted the or intentionally knowingly receive[d] committing something which was not bet, or offer to оver the tele- crime, applicant’s recorded] trial and thus so infected event, sporting a foot- phone, on a to wit: fundamentally render it unfair. Giv- as to Pittsburg game played ball between “application” paragraph en the Steelers and Cleveland Browns on No- [sic] verdict, charge, jury’s the conclu- 22,1981, only vember known inescapable jury’s verdict sion is Jury Player alleged as to the Grand upon unconstitutional may have rested indictment, find the you then will set Applicant’s conviction should be basis. guilty.” jury found aside. guilty, alleged in cant “as the indictment.” However, notwithstanding that as a mat- seen, easily object As there is no constitutional law ter of federal words “received” and “recorded” void, applicant is prior felony conviction is charge jury, making to the an “offer to time, stated, in the for the reasons at telephone under bet” over the is no crime wrong application should courthouse. His 47.03(a)(3) per- because it is when a pursue prejudice without be dismissed son rеceives or records an offer to bet or proper his claim for relief court- has that a crime forwards the offer to bet house. Thus, been committed under the statute. foregoing rea- For all of the above and jury if the court’s instruc- followed the trial sons, respectfully dissent. tion, did, presume and we must charge only thing jury could committing applicant guilty have found offering telephone to bet over the alleged game, crime. which is no grants re- majority opinion

lief to this decision of hоw- supra. Adley, supra, Adley v. O’NEAL, Appellant, Lee William ever, error in the inapplicable charge. court’s Texas, Appellee. The STATE applicable this cause is the What is following: An has been con individual who No. 865-86. fundamentally defec to a victed Texas, Appeals of Criminal charge, egregious as jury tive which is so En Banc. rise of a constitutional viola level prejudicial tion or is so as to render March unfair, fundamentally is entitled trial itself granted corpus relief. to be federal habeas instance, is no need for there See, example, charge.

objection to the

Case Details

Case Name: Ex Parte Elliott

Court Name: Court of Criminal Appeals of Texas

Date Published: Feb 24, 1988

Citation: 746 S.W.2d 762

Docket Number: 69964

Court Abbreviation: Tex. Crim. App.