Graham, Christopher L.

Case Information

RECEIVED COURT OF CRIMINAL APPEALS 3/4/2015 ABEL ACOSTA, CLERK

WR-82,944-01 COURT OF CRIMINAL APPEALS AUSTIN, TEXAS Transmitted 3/4/2015 12:19:00 AM Accepted 3/4/2015 4:15:39 PM ABEL ACOSTA NO._____________________________ CLERK IN THE TEXAS COURT OF CRIMINAL APPEALS On appeal from the 207 th District Court of Comal County, Texas PETITION FOR WRIT OF HABEAS CORPUS AND MOTION TO STAY JUDGMENT

CHRISTOPHER L. GRAHAM, Applicant, files the petition for writ of habeas corpus and in support of this petition show the Court the following: IDENTITY OF THE PARTIES

1. Petitioner, in the trial court is Christopher Graham, hereinafter referred to as “Graham” 2. Petitioner is proceeding Pro Se in this matter, State Bar number 24047549. 3. Respondent, in the trial court is the State of Texas 4. Respondent’s counsel is the Office of the District Attorney Jennifer Tharp; specific counsel

handling this habeas corpus has not been designated from the office of the district attorney or is unknown at this time by Petitioner.

TABLE OF CONTENTS 5. Index of Authorities 2 6. Statement of the Case 3 7. Statement Regarding Oral Argument 4 8. Issues Presented 4 9. Statement of Facts 5

PETITION FOR WRIT OF HABEAS CORPUS AND MOTION TO STAY JUDGMENT 1

10. Summary of the Argument 7 11. Statement of Jurisdiction 8 12. Standard of Review 8 13. Argument 10 14. Prayer 18 15. Appendix 21

INDEX OF AUTHORITIES

a. Aguilar v. State, 621 S.W.2d 781 (Tex. Crim. App. 1981) b. Brown v. United States, 356 U.S. 148, 153, 78 S. Ct. 622, 2 L. Ed. 2d 589 (1958) c. Ex parte Acker, 949 S.W.2d 314, 316 (Tex.1997) d. Ex Parte Barnett, 600 S.W.2d 252 (Tex. 1980) e. Ex parte Butler, 372 S.W.2d 686, 687 (Tex. Crim. App. 1963)— f. Ex parte Camara, 628 S.W.2d 803, 804 (Tex. Crim. App. 1982) g. Ex Parte Cardwell, 416 S.W.2d 382 (Tex. 1967). h. Ex parte Curtis, 568 S.W.2d 363, 366–367 (Tex. Crim. App. 1978) i. Ex parte Daniels, 722 S.W.2d 707, 709 (Tex.Crim.App. 1987 j. Ex parte Durham, 921 S.W.2d 482, 485 (Tex.App.—Corpus Christi 1996, orig. proceeding) k. Ex parte Durst, 148 S.W.3d 496, 499 (Tex. App., Houston [14th Dist.] 2004, pet. ref’d) l. Ex parte Hiester, 572 S.W.2d 300, 303 (Tex.1978) m. Ex Parte Hightower, 877 S.W.2d 17 (Tex. App. Dallas 1994), writ dismissed w.o.j., (July 28, 1994) n. Ex parte Jacobs, 664 S.W.2d 360, 364 (Tex. Crim. App. 1984)] o. Ex parte Keene, 909 S.W.2d 507, 508 (Tex.1995); p. Ex parte Krupps, 712 S.W.2d 144, 149 (Tex. Crim. App. 1986), cert. denied, 479 U.S. 1102

(1987) q. Ex Parte Laymon, 679 S.W.2d 532, 534 (Tex.App.—Houston [1st Dist.] 1984, orig. proceeding) r. Ex parte Moorehouse, 614 S.W.2d 450, 451 (Tex. Crim. App. 1981) s. Ex parte Occhipenti, 796 S.W.2d 805, 809 (Tex.App.—Houston [1st Dist.] 1990, orig.

proceeding) t. Ex parte Pink, 746 S.W.2d 758, 762 (Tex. Crim. App. 1988) u. Ex parte McDonald, 852 S.W.2d 730, 735 (Tex. App., San Antonio 1993) v. Ex parte Murphy, 669 S.W.2d 320, 322 (Tex. Crim. App. 1984), cert. denied, 469 U.S. 823

(1984) w. Ex parte Reese, 23 S.W.3d 54, 56 (Tex.App.—Austin 2000, pet. ref’d). x. Ex parte Salfen, 618 S.W.2d 766, 769 (Tex. Crim. App. 1981) y. Ex parte Shields, 779 S.W.2d 99, 101 (Tex.App.—Houston [1st Dist.] 1989, orig. proceeding) z. Ex parte Sproull, 815 S.W.2d 250, 250 (Tex.1991). aa. Ex parte Strickland, 724 S.W.2d 132, 134 (Tex.App.—Eastland 1987, orig. proceeding) bb. Ex Parte Sweeney, 628 S.W.2d 855 (Tex. App. Fort Worth 1982). cc. Ex parte Taylor, 807 S.W.2d 746, 748 (Tex. Crim. App. 1991)

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dd. Ex parte Thompson, 508 S.W.2d 624, 625 (Tex. Crim. App. 1974) ee. Ex parte Trillo, 540 S.W.2d 728, 731 (Tex. Crim. App. 1976), overruled on other grounds, ff. Ex Parte Werblud, 536 S.W.2d 542 (Tex. 1976); In re Hammond, 155 S.W.3d 222 (Tex. App. El

Paso 2004) gg. In Re Application of Mackay, 35 P.2d 385 (Cal. 1934) hh. In re Brown, 114 S.W.3d 7, 12-13 (Tex.App.—Amarillo 2003, orig. proceeding). ii. In re Farquhar ,492 F2d 561 (D.C. Cir. 1973) jj. In re Greene, 213 F.3d 223 (5 th Cir., 2000) kk. In re Hammond, 155 S.W.3d 222 (Tex. App. El Paso 2004) ll. In re Monroe, 532 F.2d 424, 425–426 (5th Cir. [Tex.] 1976) mm. In re Office of the Atty. Gen., ___ S.W.3d ___ (Tex.2013) (No. 11-0255; 3-8-13) nn. Lee v. State, 799 S.W.2d 750, 752-753 (Tex. Crim. App. 1990 oo. Roselle v. State, P.2d 486 (Okla. Crim. App. 1973) pp. Rowe v. Moore, 756 S.W.2d 117 (Tex. App. Houston 1 st Dist. 1988 qq. Taylor v. District Court for the Fourth Judicial Dist., 434 P.2d 679 (Alaska 1967) rr. Williams v. Estelle, 4566 F.Supp. 1376 (S.D. Tex. 1983 ss. Wise v. Commonweath, 34 S.E. 453 (Va. 1899) tt. Tex. Cod. Crim. Proc. Art. 4.04 § 1 uu. Tex. Code. Crim. Proc. Art. 11.01 vv. Tex. Code Crim. Proc. Art. 11.23 ww. Tex. Code Crim. Proc. Art. 17.15(1), (2), (3), (4), (5) xx. Tex. Const. Art. 5 § 5; yy. Tex. Fam. Code §157.163 zz. Tex. Gov’t Code Sec. 21.002(d)

STATEMENT OF THE CASE

16. On 2/25/2014, State v. Chelsie Chenoweth, case number CR2013-366 was scheduled for arraignment (CR Supplement 1:20) and the Court issued its show cause order against Graham claiming that Graham arrived tardy to court . (CR 1:16)

17. On 3/10/2014, Graham filed his response contesting the show cause order and requesting among other things a continuance of the show cause hearing, a court appointed attorney, a personal recognizance bond, and that an administrative law judge be appointed in the case of a finding of contempt. (CR Supplement 1:5-6)

18. The Court rescheduled the 3/13/2014 show cause hearing date to 4/8/2014 (CR Supplement 1:9)

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19. On 4/8/2014 the court made a finding of contempt against Graham in case number CR2013-

366. (CR 1:24).

20. On 4/8/2014, Graham was committed to the Comal county jail (App. 1) and released after payment of a $5,000 cash appeal bond (App. 2). 21. 4/21/2014, Graham filed notice of appeal (CR 1: 32) and a motion for new trial (CR 1:35). 22. 4/28/2014, the Court denied Graham’s motion for new trial (CR 38). 23. 5/5/2014, Graham filed a request for a free transcript (CR Supplement 1:21). 24. 9/2/2014, the State filed its contest of Graham’s request for free transcript and affidavit of

indigence (CR Supplement 1:23) 25. 9/23/2014 a hearing was held on Graham’s request for a free transcript and affidavit of indigence, and the Court denied Graham’s request to proceed as indigent on appeal (CR 61) 26. 10/2/2014 Graham filed its motion challenging the order sustaining the State’s contest. (CR 1:78).

STATEMENT REGRADING ORAL ARGUMENT

27. Oral argument is requested by Graham at this time.

ISSUES PRESENTED

28. Is a finding of contempt against an attorney wrong where: 1)the attorney appeared at court a few minutes late after having been delayed by traffic and jail transport delays after having been conducting a client interview in a nearby jail during the recess for a client who was scheduled for jury trial in a few days; 2) where the court issuing the show cause order had gone on a lunch break for more than an hour and when the attorney and client had completed the documentation for the disposition of the case and where the court knew that the attorney and the client had been waiting for several hours to dispose of the case; 3) where the purpose of the scheduled hearing for client had been completed by

PETITION FOR WRIT OF HABEAS CORPUS AND MOTION TO STAY JUDGMENT

4 attorney; 4) where the court singled out attorney for punishment since the court never issued show cause orders to other attorneys tardy by a few minutes to court; 5) where there was no evidence of willful intent to disregard the Court’s order, 6) where there was no admonition to the attorney that a failure to return at the designated time would result in contempt; 7) where the finding of contempt was made by an administrative judge where there was no previous finding of contempt by the trial judge; and 8) where the Court did not advise or afford the alleged contemnor with the right to counsel?

STATEMENT OF FACTS

29. Graham is currently being illegally restrained as a result of the actions of administrative law Judge Douglas Shaver. 30. The basis of the restraint is the contempt order issued by Judge Shaver on 4/8/2014 (CR 1:24) 31. On 2/12/2014, Graham called the court to request that the case State v. Chelsie Chenoweth,

be scheduled for court on 2/13/2014. Graham was told by the court coordinator that the case had been set for hearing. (RR 2:43 l. 25, RR 2:44 l. 1-8)

32. On 2/13/2014, Movant appeared at court expecting to be able to resolve this case and was told that the Court had erred and that case had not been added to that day’s docket. Court personnel told Graham to return to court on 2/25/2014. (RR 2:43 l. 25, RR 2:44 l. 1-8)

33. On 2/25/2014, the case State v. Chenoweth, case number 2013CR366 had been set for arraignment hearing. (CR Supplement 1:20). Graham arrived at the court shortly before 9 am, but was in the hallway talking to a client on the phone. (RR 2:47 l. 21, RR 2: 48 l. 1)

34. Client Chenoweth had already checked with the court (RR 2:30 l.15) and shortly thereafter, at around 9 am, Graham announced to the Court that he was prepared to proceed on the arraignment hearing (RR 2: 47 l. 11-18).

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35. Shortly before 10 am and after a few minutes of negotiation with the prosecutor in the case, arraignment documents and plea documents were signed and prepared by client Chenoweth indicating that she understood her charges in the case and the plea bargain terms. (RR 2:44 l. 16-22).

36. For several hours, Graham and client Chenoweth waited for the Court to hear and enter the plea in the case all to no avail. (RR 2:44 l.25, RR 2:45 l. 1-4). 37. Movant had to bring the Chenoweth case to the Court’s attention several times that the case was ready for plea and ready to be disposed of. (RR 3:48 l. 1-10); (RR 3:62 l. 18-22) 38. The Court took a break for an extended period and did not hear the plea for Graham’s client. Around 11:45am, the Court entered recess until 1:15pm for lunch. (RR 3:63 l. 2-9). 39. After Court resumed the Court still did not hear Graham’s client’s plea (RR 3: 74 l. 11-14). 40. Before breaking for lunch the Court indicated that before Graham’s plea was to be heard, that

there would be several contested cases that the Court would hear before it considered the Chenoweth plea. (RR 3:62 l. 5-10) ; (RR 3:62 l. 20-21); (RR 3:63 l. 5-6); (RR 3:62 l. 13-21).

41. During the recess, Graham went to the Bexar county jail in order to talk briefly with a client concerning his upcoming jury trial. (RR 3:45 l. 5-14). 42. Due to heavy traffic and delays in transporting inmates in the Bexar county jail, Graham was delayed in coming back to the court by a few minutes. Graham arrived in the courtroom at approximately 1:35pm. (RR 3:54 l. 4-8).

43. When Graham entered the courtroom client Chenoweth had been released and the trial Court presented him with a show cause order, alleging that attorney Graham was in contempt of court. (RR 2:46, l. 4-7).

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44. The show cause hearing was scheduled for 3/13/2014 (CR 1:16), however Graham filed a request for continuance of the hearing because he was scheduled for court in another jurisdiction on the same day. (CR Supplement 1:4-6)

45. No contempt finding or order was ever made or entered at the show cause hearing of 3/13/2014 (CR Supplement 1:21). The case was referred to administrative law judge Doug Shaver for hearing on 4/8/2014. (CR Supplement 1:7).

46. On 4/8/2014, Graham was wrongly found guilty of contempt due to being tardy by a few minutes and because he did not appear at the 3/13/2014 show cause hearing even though a continuance was requested. (CR Supplement 1:12)

47. The sentence assessed against Graham was 15 days in the Comal County jail and a $300 fine (CR Supplement 1:12). Graham’s bond was set at $5,000 cash (CR Supplement 1:15). Graham paid the $5,000 (five thousand dollar) cash bond in order to secure his release. (CR Supplement 1:16).

SUMMARY OF ARGUMENT

48. The trial court 1) failed to provide Graham with his right to an attorney 2) failed to inquire into his qualification for a court appointed attorney when such a request was made 3) failed to inform Graham about his right to a jury trial 4) failed to make a contempt finding before transferring the case for hearing before an administrative law judge 5) failed to evaluate the evidence properly in finding contempt since there was no evidence of intentional disrespect to the Court or actual delay in the administration of justice 6) imposed a draconian punishment on Graham of 15 days incarceration which is a violation of his due process rights and 7) imposed a unsupportable amount for an appeals bond when it was not substantiated by the evidence. Consequently, Graham’s contempt finding must be reversed

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STATEMENT OF JURISDICTION

46. There is no right to an appeal from an order of contempt. The proper remedy for testing a contempt order is to collaterally attack the judgment by filing an original application for writ of habeas corpus, Ex parte Moorehouse, 614 S.W.2d 450, 451 (Tex. Crim. App. 1981). Since the function of a writ of habeas corpus is to secure a person’s release from confinement or restraint, the remedy may be used only when a court has entered an order restraining the contemnor , see Tex. Code. Crim. Proc. Art. 11.01. However, this does not mean that the contemnor must actually be confined while awaiting the disposition of the writ of habeas corpus. It is possible to obtain a stay of the contempt order while seeking habeas corpus relief, see Ex parte Camara , 628 S.W.2d 803, 804 (Tex. Crim. App. 1982). A person free on bond is also considered to be in custody for habeas corpus purposes, see Ex parte Trillo, 540 S.W.2d 728, 731 (Tex. Crim. App. 1976), overruled on other grounds, Aguilar v. State, 621 S.W.2d 781 (Tex. Crim. App. 1981). The Court of Criminal Appeals has constitutional and statutory power to issue writs of habeas corpus in the exercise of its original jurisdiction, Tex. Const. Art. 5 § 5; C.C.P. Art. 4.04 § 1. Therefore, it is appropriate to file a petition for writ of habeas corpus challenging a criminal contempt order in the Court of Criminal Appeals.

STANDARD OF REVIEW

47. Courts are expected to guard against confusing acts that offend their sensibilities with acts that are actually disrespectful or that obstruct the administration of justice, see Brown v. United States, 356 U.S. 148, 153, 78 S. Ct. 622, 2 L. Ed. 2d 589 (1958). The act itself must be shown to be intentionally disrespectful; whether the statement offended the court is not the test. Contempt is not to be presumed; on the contrary, it is presumed not to exist, Ex parte Taylor, 807 S.W.2d 746, 748 (Tex. Crim. App. 1991). Therefore, the fact that conduct may be irritating or exasperating does not necessarily render it contemptuous, see Ex parte Pink, 746 S.W.2d 758, 762 (Tex. Crim. App. 1988). To sustain contempt proceedings, the order disobeyed must specifically command or order the

PETITION FOR WRIT OF HABEAS CORPUS AND MOTION TO STAY JUDGMENT

8 individual to do or not to do some act or acts. The order must provide the person with specific and definite notice of the acts the person must or must not perform in order to avoid being held in contempt, Lee v. State, 799 S.W.2d 750, 752-753 (Tex. Crim. App. 1990). Furthermore, failure to appear in court due to conflicting court settings generally is not appropriate, see Ex parte Butler, 372 S.W.2d 686, 687 (Tex. Crim. App. 1963)—contempt improper for minor tardiness caused by conflicting settings in courts of equal jurisdiction.

48. A writ of habeas corpus may be issued in cases in which the court had no power to issue the contempt order, as well as cases in which the power existed but it was exercised in a manner or degree not authorized by law Tex. Code Crim. Proc. Art. 11.23. Thus, a contemnor can challenge the court’s jurisdiction to render a contempt judgment as well as the lawfulness of the way in which it enforced its jurisdiction, see Ex parte Salfen, 618 S.W.2d 766, 769 (Tex. Crim. App. 1981).

49. A contemnor may also challenge the sufficiency of the evidence to support the contempt order. When reviewing the basis for the contempt order, the Court of Criminal Appeals will view the evidence in the light most favorable to the order, see Ex parte Murphy, 669 S.W.2d 320, 322 (Tex. Crim. App. 1984), cert. denied, 469 U.S. 823 (1984). However, a contempt order may be set aside if the Court determines that the lower court had no reasonable basis for entering a contempt order, see Ex parte Butler, 372 S.W.2d 686, 687 (Tex. Crim. App. 1963). A court will issue a writ of habeas corpus if the order underlying the contempt is void or if the contempt order itself is void either because the order was beyond the power of the court or because it deprived the contemnor of his or her liberty without due process of law. Ex Parte Barnett, 600 S.W.2d 252 (Tex. 1980). The Court will take into consideration the entire record to determine whether due process was accorded. Ex Parte Cardwell, 416 S.W.2d 382 (Tex. 1967). The Court will decide whether the trial court’s contempt finding is so completely without evidentiary support that it deprives the relator of liberty without due process of law. In re Hammond, 155 S.W.3d 222

PETITION FOR WRIT OF HABEAS CORPUS AND MOTION TO STAY JUDGMENT

9 (Tex. App. El Paso 2004); Ex Parte Hightower, 877 S.W.2d 17 (Tex. App. Dallas 1994), writ dismissed w.o.j., (July 28, 1994).

50. In reviewing the trial court’s application of the law to the facts in a contempt proceeding, the appellate court is to apply the same standard used in original mandamus proceedings for review of a trial court’s application of the law. Ex Parte Hightower, 877 S.W.2d 17 (Tex. App. Dallas 1994), writ dismissed w.o.j., (July 28, 1994). The Appellate court reviews the trial court’s determination of the legal principles controlling its ruling with less deference than it reviews its factual findings. A trial court has no discretion in determining what the law is or in applying the law to the facts, and a trial courts clear failure to analyze or apply the law correctly is an abuse of discretion. Ex Parte Hightower, 877 S.W.2d 17 (Tex. App. Dallas 1994), writ dismissed w.o.j., (July 28, 1994).

ARGUMENT

a. The contempt finding must be overturned because Graham was not afforded an attorney at the contempt hearing. 51. Graham was not afforded the right to an attorney. The court must inform a pro se party facing incarceration for indirect contempt (whether civil or criminal) of the right to an attorney. Ex parte Acker, 949 S.W.2d 314, 316 (Tex.1997); Ex parte Strickland, 724 S.W.2d 132, 134 (Tex.App.—Eastland 1987, orig. proceeding); see Tex. Fam. Code §157.163 see, e.g., Ex parte Hiester, 572 S.W.2d 300, 303 (Tex.1978) (trial court could not hold contempt hearing when contemnor’s attorney was delayed in federal court); see also Ex parte Occhipenti, 796 S.W.2d 805, 809 (Tex.App.—Houston [1st Dist.] 1990, orig. proceeding) (contempt order not required to include recitation that contemnor knowingly and intelligently waived right to counsel). Furthermore, if the pro se party facing incarceration is indigent, the court must inform the party of the right to a court-appointed attorney. Ex parte Keene, 909 S.W.2d 507, 508 (Tex.1995); Ex parte Strickland, 724 S.W.2d at 135. Graham in his Response to Show Cause Order made a request for a court appointed attorney (CR Supplement 1:5). The Court summarily denied the

PETITION FOR WRIT OF HABEAS CORPUS AND MOTION TO STAY JUDGMENT

10 request and refused to conduct a hearing into Graham’s indigency (RR 2:5, l. 6-11). Such failure is a violation of Applicant’s due process rights.

b. Graham was not advised of his right against self-incrimination at the contempt hearing before he testified at the contempt hearing 52. Graham was not notified by the Court of his right against self-incrimination. A party facing incarceration for criminal contempt must be notified of the right against self-incrimination if the contemnor was compelled to testify in a criminal proceeding. See In re Brown, 114 S.W.3d 7, 12-13 (Tex.App.—Amarillo 2003, orig. proceeding). The Court did not provide any notification to Graham of his rights against self-incrimination. Such failure was a violation of Applicant due process rights. (RR 2:42 l. 22-24, RR 2:43 l. 2-10).

c. Graham was not afforded a right to a jury trial when he was faced with possible punishment over 6 months at the contempt hearing 53. Graham was entitled to a jury trial. A person accused of contempt has a right to the jury trial if the alleged offense is criminal rather than civil; constructive rather than direct, and serious rather than petty; that is where the possible punishment exceeds 6 months imprisonment. Ex Parte Werblud, 536 S.W.2d 542 (Tex. 1976); In re Hammond, 155 S.W.3d 222 (Tex. App. El Paso 2004). Criminal contempt is punitive. The purpose of a criminal contempt order is to punish the contemnor for some act that affronted the dignity and authority of the court. Ex parte Werblud, 536 S.W.2d at 545; Ex parte Reese, 23 S.W.3d 54, 56 (Tex.App.—Austin 2000, pet. ref’d). In contrast to civil contempt, compliance with the court’s criminal contempt order will not relieve the contemnor from being punished for her past acts. See Ex Parte Laymon, 679 S.W.2d 532, 534 (Tex.App.—Houston [1st Dist.] 1984, orig. proceeding). An order for criminal contempt will specify a certain amount of time that the contemnor must spend in jail. See In re Office of the Atty. Gen., ___ S.W.3d ___ (Tex.2013) (No. 11-0255; 3-8-13). Indirect, or constructive, contempt is committed outside the presence of the court. Ex parte Durham, 921

PETITION FOR WRIT OF HABEAS CORPUS AND MOTION TO STAY JUDGMENT

11 S.W.2d 482, 485 (Tex.App.—Corpus Christi 1996, orig. proceeding) (disobeying discovery orders); Ex parte Shields, 779 S.W.2d 99, 101 (Tex.App.—Houston [1st Dist.] 1989, orig. proceeding) (disobeying injunctive order); see also In re Reece , 341 S.W.3d at 367 (perjury committed during deposition is indirect contempt if perjury obstructs court’s performance of its duties). Indirect contempt requires testimony or documentary evidence to establish the contemptuous conduct. Ex parte Daniels, 722 S.W.2d 707, 709 (Tex.Crim.App. 1987). 54. The contempt order in this case specified a certain number of days of incarceration of Graham, thus this is an instance of criminal contempt. (CR 1:24) This case involves a case of constructive contempt because the circumstances of the time of arrival of Graham were outside of the presence of the court and had to be determined by testimony during a contempt hearing. (RR 2:43; where Graham testifies to circumstances of delay in arriving at court). Graham, however, was faced with several allegations of how his behavior was alleged to have been contemptuous 1) a failure to arrive exactly at 9 am on 2/25/2014; 2) a failure to return to court at 1:15 pm on 2/25/2014, 3) a failure to appear in court at the 3/13/2014 show cause hearing and 4) and alleged false statements in the Response to Courts Order to Show Cause. (CR 1:19-21). If the allegations would have been proven to be true, the Court could have elected to run the sentences consecutively and Graham would have been exposed to a sentence longer than 6 months. As a result the Court was wrong when it failed to inform and allow Graham to exercise his right to have a jury trial. Instead the trial court scheduled the case to be heard before Judge Shaver, (CR Supplement 1:7). A party facing incarceration for criminal contempt must be notified of the right to a jury trial if the contemnor was subject to “serious” punishment. Ex parte Sproull, 815 S.W.2d 250, 250 (Tex.1991).

d. This case was illegally transferred to be heard by an administrative law judge when there had been no contempt finding by the trial court 55. The trial court illegally referred the case against Graham to an administrative law judge without following protocol for such transfer. In order to invoke the mandatory requirement for a trial court to

PETITION FOR WRIT OF HABEAS CORPUS AND MOTION TO STAY JUDGMENT

12 refer contempt proceedings to the presiding judge of the administrative region in which the alleged contempt took place the following must take place 1) the offended court must enter a finding of contempt against an officer of the court and 2) the officer of the court must file a proper motion in the offended court, Tex. Gov’t Code Sec. 21.002(d). There was no show cause hearing that was conducted on 3/13/2014; no order of contempt was ever entered finding Graham guilty of contempt by the trial court. (CR Supplement 1:21) Yet the court still referred the case to be heard by administrative judge Douglas Shaver. (CR Supplement 1:7). The illegal transfer violated the Tex. Gov’t Code Sec. 21.002(d) and Graham’s due process rights and therefore Shaver’s contempt order must be reversed.

e. The $5,000 cash appeal bond and punishment were not supported by any evidence in the record 56. There was no evidence to support such a high bail amount; Graham should have been afforded a personal recognizance bond. The Code of Criminal Procedure requires that bail be set sufficiently high to ensure the defendant’s appearance, but not so high as to be an instrument of oppression Tex. Code Crim. Proc. Art. 17.15(1), (2); Ex parte McDonald, 852 S.W.2d 730, 735 (Tex. App., San Antonio 1993). In setting this amount, the official should consider the nature of the offense and the circumstances under which it was committed, Tex. Code Crim. Proc. Art. 17.15(3); The risk of flight must also be evaluated in light of reasonable conditions of bond that diminish any risk of flight. Ex parte Durst, 148 S.W.3d 496, 499 (Tex. App., Houston [14th Dist.] 2004, pet. ref’d); The future safety of the victim of the alleged offense and the community must also be considered in setting the bail amount Tex. Code Crim. Proc. (5). The official setting bail may consider any criminal record the defendant may have, see Ex parte Thompson, 508 S.W.2d 624, 625 (Tex. Crim. App. 1974)]. The defendant’s ability to make bail is another factor to be considered in setting the amount Tex. Code Crim. Proc. Art. 17.15(4). None of these factors were considered by Judge Shaver in setting the $5,000 cash bond in this case. (RR 2:73 l. 11-25); (RR 2:72 l.1-7). A $5,000 cash bond for alleged tardiness to court by Graham is completely

PETITION FOR WRIT OF HABEAS CORPUS AND MOTION TO STAY JUDGMENT

13 disproportionate to the alleged offense. (CR Supplement 1:15). There was no evidence presented that Graham was a flight risk. There was no identifiable “victim” of the alleged offense and there was certainly no evidence that there would be any possible future harm to an alleged “victim”. Graham does not have, nor is there any evidence that Graham has any prior criminal history. Furthermore, the Court did not take into consideration Graham’s ability to make bail. When there is an accusation of contempt against an officer of the court, the officer of the court is entitled to a personal recognizance bond. Tex. Gov’t Code Sec. 21.002(d). There was no evidence elicited that should have changed that requirement during the appeal of this case. The Court’s appeal bond setting in this case was comparable to Graham being charged with an aggravated felony.

57. Moreover, punishment of 15 days assessed in this case was draconian, considering that Movant is an officer of the court and has other obligations in other courts. The Court could have and should have considered other alternatives to confinement, such as a fine, community service, house arrest or reporting to confinement on weekends, or work release to name a few. Such a high bail amount and such disproportionate punishment assessed by the trial court violated Graham’s due process rights.

f. When it reset the case to 1:15pm, the Court did not specify that failure to comply for any reason would be grounds for contempt 58. The Court’s instruction does not provide notice that the failure to arrive at 1:15 pm after the recess would result in contempt. The order must provide the person with specific and definite notice of the acts the person must or must not perform in order to avoid being held in contempt, Lee v. State, 799 S.W.2d 750, 752-753 (Tex. Crim. App. 1990). The trial court simply said that the case would be reset to 1:15 pm (RR 3:63 l. 9). The Court gave no admonishment that a failure to comply for any reason would be grounds for contempt, thus a contempt finding against Graham was wrong here.

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g. Graham’s actions did not interfere with the administration of justice nor were they intentionally disrespectful to the Court. 59. Graham’s actions did not obstruct the administration of justice nor were they intentionally disrespectful. Criminal contempt usually results from doing an act that the court has prohibited. This may be an act that obstructs the administration of justice or tends to bring the court into disrespect Ex parte Krupps, 712 S.W.2d 144, 149 (Tex. Crim. App. 1986), cert. denied, 479 U.S. 1102 (1987). The essence of contemptuous conduct is that it obstructs or tends to obstruct the proper administration of justice Ex parte Jacobs, 664 S.W.2d 360, 364 (Tex. Crim. App. 1984). However, courts are expected to guard against confusing acts that offend their sensibilities with acts that are actually disrespectful or that obstruct the administration of justice, see Brown v. United States, 356 U.S. 148, 153, 78 S. Ct. 622, 2 L. Ed. 2d 589 (1958)]. The act itself must be shown to be intentionally disrespectful; whether the statement offended the court is not the test. Contempt is not to be presumed; on the contrary, it is presumed not to exist Ex parte Taylor, 807 S.W.2d 746, 748 (Tex. Crim. App. 1991). Therefore, the fact that conduct may be irritating or exasperating does not necessarily render it contemptuous see Ex parte Pink, 746 S.W.2d 758, 762 (Tex. Crim. App. 1988). However, improper actions by counsel should only be considered contemptuous if they actually interfere with the administration of justice, see Ex parte Curtis, 568 S.W.2d 363, 366–367 (Tex. Crim. App. 1978)—attorney’s remarks concerning judicial bias not disruptive.

60. For there to be contempt there need be an intentional or willful action or flagrant disregard of an order, Williams v. Estelle, 4566 F.Supp. 1376 (S.D. Tex. 1983); Ex Parte Taylor, 807 S.W.2d 756 (Tex. Crim. App. 1991). There is no contempt where there is a good faith attempt at substantial compliance with a court order; Rowe v. Moore, 756 S.W.2d 117 (Tex. App. Houston 1 st Dist. 1988); Ex Parte Sweeney, 628 S.W.2d 855 (Tex. App. Fort Worth 1982). If an attorney fails to appear at trial but the facts show a good cause or excusable neglect for the failure then there is no contempt that has been committed. Williams v. Estelle, 4566 F.Supp. 1376 (S.D. Tex. 1983); Ex Parte Taylor, 807 S.W.2d 756 (Tex. Crim. App. 1991).

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61. Graham, being one of the only African-American, out-of-town lawyers practicing on the Court appointment list in Comal county had been singled out for contempt action whereas other attorneys had not been (RR 2:26 l.10-20; not a regular practice of the court to make an attorney appearance shortly after 9 am the basis of a show cause order, yet it was the basis of a show cause order against Graham). Standing in the hall way for a brief period of time in order to complete a client phone call shows the respect that Graham had for the Court for not wanting to interrupt Court proceedings. There were no obstructions to the proper administration of justice because client Chenoweth was already in the courtroom, had already announced her appearance, and attorney Graham entered the courtroom a few minutes later and indicated to the court that he was ready to proceed with arraignment (RR 2: 47 l. 11-18). The case had been set for arraignment and the necessary arraignment documents had been signed by the client on 2/25/2014 and presented to the Court. (CR 1:15). The purpose of the hearing for 2/25/2014 had been accomplished and there was no delay in the case. Upon having completed the purposes of the hearing it was usually the Court’s practice to reschedule the case for the entry of a plea or for a trial setting. Even though the case was not scheduled for plea disposition on 2/25/2014 (CR Supplement 1:20), Graham was prepared to dispose of the case. Graham brought it to the Court’s attention numerous times that the case was ready to be disposed of by entry of a plea all to no avail. (RR 3:48 l. 1-10); (RR 3:62 l. 18-22). Graham waited hours attempting to resolve the case. (RR 2:44 l. 24-25; RR 2:45 l. 1-4). During the lunch recess, Graham went to the jail in Bexar county to talk to a client who had a trial setting in a few days and in the process was a few minutes late in getting back because of traffic and because there was a delay in transporting the client in the Bexar county jail. (RR 3:45 l. 5-14). In fact, Graham made a good faith effort to comply with the Court’s order by coming back to the Court as quickly as possible (RR 3:54 l. 4-8).

62. The traffic delay, the jail delay, the fact that the delay was only a few minutes, and the fact that the purpose of the arraignment hearing had been accomplished, shows that there was no delay in the

PETITION FOR WRIT OF HABEAS CORPUS AND MOTION TO STAY JUDGMENT

16 administration of justice. By bringing it to the trial court’s attention that the case was set for plea, Graham was actually expediting the conclusion of the case and the administration of justice. There was no flagrant disregard for the order of the trial court and Graham provided a good cause reasoning or excusable neglect for the slight tardiness in arriving back at Court.

63. Furthermore Graham actions on 3/13/2014 by not appearing at the show cause hearing were not contemptuous because a continuance was requested in advance and the Court was notified of Graham’s conflicting court settings on that day. (CR Supplement 1:4-6). Graham also attempted to call the trial court about the conflicting court settings and how he could not attend the 3/13/2014 show cause hearing but was denied (RR 2:46 l. 20-25; RR 2:47 l. 1).

h. Other Courts refuse to hold contempt in similar cases 64. Courts in Texas have been reluctant to impose contempt where an attorney fails to appear or is tardy because of a conflicting legal obligation, Minor tardiness in arriving to court because of concomitant legal obligations is not contemptuous. Ex parte Butler, 372 S.W.2d 686, 687 (Tex. Crim. App. 1963)(contempt improper for minor tardiness caused by conflicting settings in courts of equal jurisdiction) ; In re Monroe, 532 F.2d 424, 425–426 (5th Cir. [Tex.] 1976) (contempt not justified when counsel absent due to trial in another jurisdiction and withdrawal of local counsel).

65. Furthermore, Courts in other jurisdictions have been reluctant to find contempt where an attorney is briefly tardy or fails to appear because of conflicting legal obligations: Other courts in other jurisdictions have held that minor tardiness by a attorney does not justify contempt where there is no contumacious intent. See In re Farquhar 492 F2d 561 (D.C. Cir. 1973) (defense attorney found not guilty of contempt for returning to trial 8 minutes late where he had 2 conflicting court settings; the court did not find contumacious intent to justify a finding of contempt); In Re Monroe 532 F.2d 424 (5 th Cir. 1976) (no finding of contempt where an out of state attorney failed to appear for trial due to conflicting trial engagement; the court found that the attorney’s conduct was at most negligent, and that he lacked the

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17 intentional or willful action or flagrant disregard of the District Court’s rules necessary for contempt); Taylor v. District Court for the Fourth Judicial Dist., 434 P.2d 679 (Alaska 1967) (no finding of contempt where the attorney accepted a criminal action just 2 days before the scheduled trial thinking that the matter would be completed before the date of the trial and where the hearing was still ongoing during the originally scheduled trial; the court determined that while the attorney may have been careless in failing to anticipate the possibility of a conflict, his actions did not give rise to an inference of willful disobedience of the District Court’s order); Ex Parte Butler,372 S.W.2d 686 (Tex. Crim. App. 1963)(no contempt where defense attorney was 10 to 20 minutes late for docket call; the court noted that if the case had been set for trial that the attorney’s absence would have only delayed it by a few minutes); Wise v. Commonweath, 34 S.E. 453 (Va. 1899) (no contempt where the attorney was 2.5 hours late for trial and the court was waiting for him where he was involved in another ongoing trial; the court determined that there was not the slightest contempt of or disrespect to the lawful authority of the court that found him in contempt). In Re Application of Mackay, 35 P.2d 385 (Cal. 1934)(no contempt where attorney appeared 38 minutes late in returning to court after a noonday continuance without justification in the absence of an express finding by the trial court that the attorney had the ability to attend the court at the time designated); Roselle v. State, P.2d 486 (Okla. Crim. App. 1973) (no contempt where the court observed that a rule stating that attorneys must always be present when the case is scheduled without allowing any flexibility was unrealistic, and where attorney provided no reason for tardiness); In re Greene, 213 F.3d 223 (5 th Cir., 2000)(no finding of contempt where the attorney was 10-12 minutes late for arraignment and offered a plausible reason for tardiness). Since there was a plausible explanation, the delay was slight and caused because of circumstances beyond Graham’s control, there should be no finding of contempt.

PRAYER

WHEREFORE PREMISES Graham seeks the following:

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1) a stay of the contempt order from the Court of Criminal Appeals while seeking habeas corpus relief in accordance with Ex parte Camara, 628 S.W.2d 803, 804 (Tex. Crim. App. 1982); 2) that the Court grant Graham’s application for habeas corpus and reverse the trial court’s contempt finding 3) that the Court order the release and return of the $5,000 cash bond money immediately to Christopher Lauren Graham and that all bond obligations be discharged 4) and any other such relief in law or equity. Respectfully submitted, Lauren Graham & Associates PLLC By:

CHRISTOPHER L. GRAHAM

Texas Bar No. 24047549 PO Box 226265 Dallas, Texas 75222 clgraham@lgi-law.com

CERTIFICATE OF SERVICE

This is to certify that on 3/3/2015, a true and correct copy of the above and foregoing document was served on the following parties: Comal County District Attorney via fax: 830-608-2008 Judge Gary Steel via fax: 830-608-2030 Judge Doug Shaver: 830-608-2030 WORD COUNT CERTIFICATE Pursuant to TEX. R. APP. P. 9.4, I hereby certify that this appellate brief contains 6614 words. This is a computer-generated document created in Microsoft Word. In making this certificate of compliance, I am relying on the word count provided by the software used to prepare the document.

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APPENDIX

1. Comal County Sheriff’s Office Record of Graham’s Incarceration App. 1; page 1 2. Receipt Evidencing Payment of Appeal Bond App. 2; page 2 3. Clerk’s Record Volume 1 of 1 App. 3; (CR 1); page 3 4. Supplemental Clerk’s Record Volume 1 of 1 App. 4 (CR Supplement 1); page 95 5. Reporter’s Record Volume 1 of 3 App. 5; (RR 1); page 121 6. Reporter’s Record Volume 2 of 3 App. 6; (RR 2); page 128 7. Reporter’s Record Volume 3 of 3 App. 7; (RR 3); page 203

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21 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 50 51 52 53 54 55 56 57 58 59 60 61 62 63 64 65 66 67 68 69 70 71 72 73 74 75 76 77 78 79 80 81 82 83 84 85 86 87 88 89 90 91 92 93 94 95 ^[1] 96 ^[2] 97 ^[3] 98 ^[4] 99 ^[5] 100 ^[6] 101 ^[7] 102 ^[8] 103 ^[9] 104 ^[10] 105 ^[11] 106 ^[12] 107 ^[13] 108 ^[14] 109 ^[15] 110 ^[16] 111 ^[17] 112 ^[18] 113 ^[19] 114 ^[20] 115 ^[21] 116 ^[22] 117 ^[23] 118 ^[24] 119 ^[25] 120 ^[26] 1 Master Index 121

April 8, 2014

REPORTER'S RECORD VOLUME 1 OF 3 VOLUMES TRIAL COURT CAUSE NO. CR2013-366 IN RE: ) IN THE DISTRICT COURT ) ) 274TH JUDICIAL DISTRICT )

CRISTOPHER GRAHAM ) COMAL COUNTY, TEXAS _____________________________________________

MASTER INDEX

_____________________________________________ On the 8th day of April, 2014, the following proceedings came on to be held in the above-titled and numbered cause before the Honorable Lloyd Douglas Shaver, Judge Presiding, held in New Braunfels, Comal County, Texas.

Proceedings reported by computerized stenotype machine.

RICHARD E. ROBERTS, JR., CSR

2 Master Index 122

April 8, 2014

APPEARANCES MR. DANIEL A. PALMITIER SBOT NO. 24062934 Comal County DA's Office 150 N. Seguin Street Suite 307 New Braunfels, Texas 78130 Telephone: (830)221-1300 Attorney for State

MR. CHRISTOPHER L. GRAHAM SBOT NO. 24047549

Lauren Graham & Associates 700 N. St. Mary's Street Suite 1400 San Antonio, Texas 78205 Telephone: (469)605-6846 Attorney for Respondent

RICHARD E. ROBERTS, JR., CSR

3 Master Index 123

April 8, 2014

VOLUME 1 MASTER INDEX April 8, 2014 VOLUME 2 SHOW CAUSE HEARING April 8, 2014 PAGE VOL. WITNESSES APPEARING ON BEHALF OF THE STATE: RICK ROBERTS Direct Examination by Mr. Palmitier.................10 2 Cross Examination by Mr. Graham.....................24 2 Redirect Examination by Mr. Palmitier...............28 2 Recross Examination by Mr. Graham...................28 2

CHELSIE CHENOWETH

Direct Examination by Mr. Palmitier.................29 2 Cross Examination by Mr. Graham.....................32 2

NICK REININGER

Direct Examination by Mr. Palmitier.................36 2

CYNTHIA BROWNE

Direct Examination by Mr. Palmitier.................39 2 Cross Examination by Mr. Graham.....................42 2 WITNESS ON BEHALF OF RESPONDENT: CHRISTOPHER GRAHAM Direct Testimony of Mr. Graham......................43 2 Cross Examination by Mr. Palmitier..................47 2

RICHARD E. ROBERTS, JR., CSR

4 Master Index 124

April 8, 2014

VOLUME 3 EXHIBIT VOLUME

RICHARD E. ROBERTS, JR., CSR

5 Master Index 125

April 8, 2014

ALPHABETICAL INDEX OF WITNESSES

Direct Cross V. Dire Brown, Cynthia 39 v2 42 v2 Chenoweth, Chelsie 29 v2 32 v2 Graham, Christopher 43 v2 47 v2 Reininger, Nick 36 v2 Roberts, Rick 10 v2 24 v2 28 v2 28 v2

RICHARD E. ROBERTS, JR., CSR

6 Master Index 126

April 8, 2014

EXHIBITS EXHIBIT NO. DESCRIPTION OFFERED ADMITTED State's 1 Reporter's Records 13 13 February 25/March 13, 2014

RICHARD E. ROBERTS, JR., CSR

7 Master Index 127

April 8, 2014

STATE OF TEXAS COUNTY OF COMAL

I, RICHARD E. ROBERTS, JR., Official Court Reporter in and for the 274th District Court of Comal County, State of Texas, do hereby certify that the above and foregoing contains a true and correct transcription of all portions of evidence and other proceedings requested in writing by counsel for the parties to be included in this volume of the Reporter's Record in the above-styled and numbered cause, all of which occurred in open court or in chambers and were reported by me.

I further certify that this Reporter's Record of the proceedings truly and correctly reflects the exhibits, if any, offered by the respective parties.

WITNESS MY OFFICIAL HAND on this, the 26th day of January, 2015. /s/ Richard E. Roberts, Jr. _________________________________ RICHARD E. ROBERTS, JR., CSR Texas CSR 5411 Official Court Reporter 274th District Court P.O. Box 311905 New Braunfels, Texas 78131-1905 Expiration: 12/31/16

RICHARD E. ROBERTS, JR., CSR

1 128 CAUSE NOS. CR2013-519, CR2013-366 VOLUME 2 OF 3 VOLUMES IN RE: ) IN THE DISTRICT COURT ) ) 274TH JUDICIAL DISTRICT )

CHRISTOPHER GRAHAM ) COMAL COUNTY, TEXAS * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *

SHOW CAUSE HEARING

April 8, 2014 * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * On the 8th day of April, 2014, the following hearing came on to be heard outside the presence of a jury in the above-styled and numbered cause before the Honorable Lloyd Douglas Shaver, Visiting Judge, held in New Braunfels, Comal County, Texas.

Proceedings reported by Computerized Stenotype Machine; Reporter's Record produced by Computer-Assisted Transcription.

ATTORNEYS' REPORTING SERVICE

2 129 APPEARANCES FOR CHRISTOPHER L. GRAHAM: CHRISTOPHER L. GRAHAM LAUREN GRAHAM AND ASSOCIATES, PLLC 700 N. St. Mary's Street, Suite 1400 San Antonio, Texas 78205

FOR THE STATE: DANIEL PALMITIER Assistant District Attorney 150 N. Seguin, Suite 307 New Braunfels, Texas 78130 830.608.2008

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3 130

INDEX

PAGE WITNESSES APPEARING ON BEHALF OF THE STATE: RICK ROBERTS Direct Examination by Mr. Palmitier ....................10 Cross Examination by Mr. Graham ........................24 Redirect Examination by Mr. Palmitier ..................28 Recross Examination by Mr. Graham ......................28

CHELSIE CHENOWETH

Direct Examination by Mr. Palmitier ....................29 Cross Examination by Mr. Graham ........................32

NICK REININGER

Direct Examination by Mr. Palmitier ....................36

CYNTHIA BROWNE

Direct Examination by Mr. Palmitier ....................39 Cross Examination by Mr. Graham ........................42 WITNESS OF BEHALF OF CHRISTOPHER GRAHAM: CHRISTOPHER GRAHAM Direct Testimony by Mr. Graham .........................43 Cross Examination by Mr. Palmitier .....................47

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4 131

EXHIBITS

EXHIBIT NO.

DESCRIPTION MARKED OFFERED ADMITTED State's 1 Reporter's Record 13 13 13

Feb. 25/March 13, 2014

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5 132 THE COURT: All right. We have two Show Cause orders, No. CR2013-366, In Re Christopher Graham and CR2013-519, In Re Christopher Graham.

Both sides ready to appear? MR. PALMITIER: Yes, Your Honor. MR. GRAHAM: Your Honor, I made a request last

time for a court-appointed attorney. I just want to make sure that the Court has denied that request for purposes of the record.

THE COURT: All right. Let the record reflect it has been denied. Are you ready to proceed? MR. PALMITIER: Yes, Your Honor. The State calls its first witness, court

reporter Rick Roberts. (Witness placed under oath by the Court) THE COURT: Have a seat. Are there any other witnesses in the courtroom

that are going to testify? MR. PALMITIER: There will be one more showing up in the next -- THE COURT: Okay. Well, let me know because they are going to be under the Rule. They will have to wait outside.

MR. PALMITIER: Can I let my investigator know

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6 133 what to look for real quick? THE COURT: Sure. MR. GRAHAM: I would also invoke the Rule at

this time. THE COURT: All right. It's been invoked. MR. PALMITIER: Actually, there will be -- one

is here, Your Honor, our bailiff, Nick. (Bailiff placed under oath by the Court.) THE COURT: The Rule has been invoked. That

means you can no longer discuss your testimony among other witnesses. You can still talk to the lawyers for either side. If you do that, you have to do it where no one else can hear you and you'll have to remain outside.

THE BAILIFF: Yes, sir. MR. PALMITIER: I don't know if the Court has

had time to go over the files, if you would like a brief opening synopsis of what the testimony would be.

THE COURT: Yes. MR. PALMITIER: Is that yes? You would like a

brief synopsis? THE COURT: Yes. MR. PALMITIER: At this time, Your Honor, I

would to ask the Court to take judicial notice of the two court files in Chelsie Chenoweth and additionally Cynthia Browne.

THE COURT: I have done so.

ATTORNEYS' REPORTING SERVICE

7 134 MR. PALMITIER: Thank you, Your Honor. A quick review of that is going to show, once looking at the record, that on February 25th Chelsie Chenoweth was to be called for a pretrial arraignment. And at about 9:00 o'clock the Court started calling the docket. At 9:24 they got to Ms. Chenoweth's announcement and Ms. Chenoweth, the defendant, was present. However, defense counsel was not present.

At about 9:38 defense counsel it looked like was here and that he'd be speaking with the DA's office. The Court then recessed for an hour. And about 10:52 the defense counsel notified the Court he was ready to do a plea in the case. And the Court notified defense counsel that there were custody cases and a contested hearing that were in front of his non-custody plea. So eventually he was recessed to come back after lunch at 1:15. At 1:34 the Court, going through the docket, noticed Mister -- Ms. Chenoweth was present. Mr. Graham was still not present. And the Court shut down at about 1:46. And Mr. Graham showed up around 2:00 o'clock that day.

So Ms. Chenoweth's case would not to able to be taken up that day. It was going to have to be reset. And it was reset to March 13th. And, additionally, at that point the Court set a hearing for March 13 for a Show Cause as to why defense counsel was late in the morning and late -- and didn't show in the afternoon until after the Court had closed.

ATTORNEYS' REPORTING SERVICE

8 135 March 13th, again at 9:38 in the morning, Ms. Chenoweth's case was called. And Mr. Graham was not present. The Court was notified that Mr. Graham would be sending someone else in his place. That person did not show up. And Ms. Chenoweth, when questioned, had not spoken to Mr. Graham either. On that day the defense counsel or anybody from his office wholly failed to show.

That is what the evidence will show after testimony today, Your Honor. THE COURT: All right. You may proceed. MR. GRAHAM: Your Honor, am I permitted to give

an opening or -- THE COURT: Sure. Go ahead. MR. GRAHAM: Your Honor, the fact of the matter

is this was a case that was -- I attempted to set on the 13th of February, 2014, and called the Court in order to set Ms. Chenoweth's case. It was supposed to be set on that day because I had other cases that were set on the same day. However, when I got here on the 13th of February, I was told by the Court that, no, Ms. Chenoweth's case was not on the Court docket. The fact of the matter is insofar as when her subsequent court case was set on the 25th of February I didn't hear her name called. You know, I wanted to verify with the Court, you know, basically that her case had been called. At that point I said, "Look, you know, has Ms. Chenoweth's case

ATTORNEYS' REPORTING SERVICE

9 136 been called?" And I guess some kind of notation was made in the Court docket that, you know, I was here and was ready to proceed.

Shortly thereafter the case was set up for plea and was ready to go. The plea paperwork in Ms. Chenoweth's case had been signed and was ready. And for whatever reason, the Court took a lengthy recess of an hour or longer. Ms. Chenoweth's case was not gotten to after several attempts. I had to notify the Court again twice that "Hey, look, we have got a plea that's ready to go here."

And so the Court then said that the case was going to be reset until 1:15 that day. So, in other words, we have got a situation here where I have got a plea that's ready to go and I'm waiting to get it done for hours and hours. And I'm a solo practitioner. I had another consultation in San Antonio, thought that I could get it done and come back. I was a few minutes late. The Court indicated to me that there were other contested matters that were going to be taken up prior to the plea anyway. And so I got here and, lo and behold, the other cases had been dismissed. My client was gone. And that's pretty much what happened. It wasn't a situation about any kind of intentional disrespect to the Court. It was just a matter of trying to get back from San Antonio here between that lunch period when the Court recalled the case at 1:15.

So, as a result of that, surely it's not a

ATTORNEYS' REPORTING SERVICE

10 137 situation where there is any obstruction of the Court's, you know, attempts at resolving cases. By all means, I was trying to get that done. It was just a scheduling issue with the jail down in San Antonio. As a result of that, I don't think that any kind of contempt should be issued or actually held in effect here today.

Thank you. THE COURT: You may proceed.

RICK ROBERTS,

having been first duly sworn, testified as follows:

DIRECT EXAMINATION

BY MR. PALMITIER:

Q. Please state your name for the record. A. Rick Roberts. Q. And how are you employed, Mr. Roberts? A. I am the official reporter for the 274th Judicial

District Court. Q. How long have you been in that position for? A. January 1st of this year was 15 years. Q. Who is the judge for that particular court? A. District Judge Gary Steel. Q. How long have you worked with him for? A. Also that -- we started January 1, 1999. That is

the day he took the bench. Q. So working with him over 15 years, have you got to I

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11 138 guess realize a pattern in how his docket is called? A. I do. Q. Okay. To become a certified court reporter, what

kind of qualifications, education do you need? A. First, you get your certification from some accredited school that basically is a proficiency that you receive that qualifies you to take a State test that's given quarterly. At that point you have to pass three phases, 225 words a minute Q&A, 200 jury charge, and 180 literary. If you pass those -- all three at 95 percent, you become certified by the State of Texas.

Q. And did you do such? A. I did. Q. So what certifications do you hold? A. I hold that certification as an official court

reporter for the State of Texas. Q. Now, on February 25th and March 13th, what were you doing? A. We were handling a nonjury docket here in Comal County. Q. And were you recording the record that was going on those two dates? A. I was. Q. How did you do such? A. I do it by court reporting machine and I also have

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12 139 got a laptop. And that's how I report all of our jury and nonjury cases.

Q. Is part of your job preparing records for court cases? A. Yes, it is. Q. Did you prepare a record in this particular case? A. Yes, I did. Q. What were the dates you prepared the record for? A. If memory serves, February 25th, 2014, and March 13,

2014. Q. How many copies of the records did you prepare? A. I prepared an original and two copies. Q. Who did you give those copies to? A. The original and one copy to you, and then I mailed

a copy to opposing counsel. Q. How did you mail the copy to opposing counsel? A. Certified return receipt. Q. And did you return -- did you receive a return

receipt? A. Yes, sir. Q. Do you remember when it was delivered to him? A. I want to say on or about April the 2nd. I also

sent both counsel an electronic copy via e-mail. Q. So when you say "both counsel," is that Mr. Graham as well?

ATTORNEYS' REPORTING SERVICE

13 140 A. Yes. MR. PALMITIER: May I approach the witness, Your Honor? THE COURT: Yes. (State's Exhibit No. 1 marked)

Q. (By Mr. Palmitier) I'm showing you what's been marked as State's Exhibit No. 1. Do you recognize this? A. I do. Q. And who prepared it? A. I prepared this. Q. Okay. Did you prepare it with a device that was

capable of making an accurate reflection of the record on those two dates?

A. Yes, I did. Q. Has it been changed or altered in any way? A. No, sir.

MR. PALMITIER: If the record would just reflect I'm showing State's No. 1 to Mr. Graham for inspection. MR. GRAHAM: I'll object to relevance on the basis it contains the whole docket. I don't think it's relevant so far as this Show Cause hearing goes. In addition to that, it contains hearsay statements.

THE COURT: That's overruled. It's admitted. MR. PALMITIER: State offers Exhibit 1.

Q. (By Mr. Palmitier) Look at State's 1. Can you

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14 141 please tell the Court what time Judge Steel started calling the docket on February 25th?

A. With permission, I'm going to unbind this so that I can take a look at the time stamps, with your permission. Okay. On page three of Volume 1, the setup time, that first time that's indicated, 8:22:22AM, is the time that I came in and set up my machine -- my laptop and my machine to prepare for the day. And then the next time that shows up, the 9:06 a.m., is the time when he began calling the docket.

Q. You said you have worked with Judge Steel for 15 years? A. That's correct. Q. And you are familiar with his practice of how he

calls the docket? A. I am. Q. Could you please, for the record, describe how the

docket is typically called? A. Yes. The -- what he normally does is he will call the civil docket first. In cases -- or in dockets when we have both civil and criminal, he will call the civil docket first, take announcements. If there are announcements of ready, he will go ahead and hear those if they are short. Short announcements of ready he will go ahead and try and get those heard. That can take 10 or 15 minutes.

Once he's taken any short announcements of ready

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15 142 or uncontested announcements, he will then call the criminal docket and take announcements for the criminal docket.

Q. Okay. Once he takes announcements for the criminal docket, does he have any sort of preference on how he takes up the cases?

A. His main preference is custody over non-custody cases. His priority is that he likes to resolve all custody cases, if possible, before the noon hour so they transport -- you only have to make one transport for the day and don't have to come back after lunch.

Q. Now, on this particular day, without getting into specifics, was there anything out of the ordinary on how the docket was called?

A. My memory, no. I think it went the traditional way. Q. Okay. Refer you to your report or record. On page

21, please tell the Court, for the record today, what time Ms. Chenoweth's case was first called.

A. That would be 9:24 a.m. Q. Looking to your record, was Ms. Chenoweth present? A. The defendant answered present or answered, "Here." Q. Okay. Did Mr. Graham announce present for

Ms. Chenoweth? A. It appears that he was not present. The defendant then responds to the Court whether her counsel was here. Her response was, "I haven't heard from him."

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16 143 Q. What did the Court do at that point? A. His response is, "Give him a call and prepare a show

cause." Q. Now, you are aware that Mr. Graham did show up later that morning? A. He did show up later that morning, yes, sir. Q. I refer you to your record at page 34. Can you

please tell the Court today what time Mr. Graham announced for Ms. Chenoweth?

A. Yes. That would be 9:38 a.m. Q. If you can tell from the record, what was Mr. Graham

and Ms. Chenoweth's case there set for that day? A. I believe it was set for arraignment. Let me verify that. Yes, that is correct. Q. What did the Court let Mr. Graham know at that moment when he announced? A. Usually on first settings for arraignment the Court advises counsel to either get a waiver of arraignment from their client or he will arraign them. And that is what was stated here on page 35. The Court says, "For arraignment. I need you to say hello to the DA's office. If there is nothing we can do today, then get me a waiver of arraignment or bring your client up and let me arraign her."

Q. Okay. What did Mr. Graham respond? A. "Sounds good. Thank you very much, Your Honor."

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17 144 Q. What did the Court then start taking up after -- after that discussion with Mr. Graham? A. Let's see. It looks like he's continuing to look for people that didn't answer the docket call, and then looks like he took a sentencing.

Q. Now, once the Court has handled all of the matters that it has before it in the morning, what does the Court typically do?

A. The Court will then usually take a break once he's taken the announcements of ready on the first docket call. And sometimes we get announcements of ready during the morning and those usually are taken before any breaks are done. If there is nothing else to be heard or ready, the Court at that time will take a break.

Q. Looking at the record, can you tell what time the Court took a recess that morning? A. Recess was taken at 9:48 a.m. Q. And do you know what time the Court started back up? A. Yes. It was 10:48 a.m. Q. Once the Court started back up, what did the Court

start doing? A. The Court's usual procedure -- and did so in this case -- is to recall the docket on any of the cases that have not been resolved.

Q. Refer you to page 48 of your record.

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18 145 When did he address Mr. Graham? A. It that would be at 10:52 a.m. Q. What was the discussion that took place at that

time? A. Discussion had to do -- Mr. Graham was announcing that they had a plea ready in this case. Q. Okay. And what did the Court let Mr. Graham know at that time? A. He had -- he had actually scratched that case off of his docket once he had spoken to Mr. Graham earlier. And so now he was aware that there was a plea ready.

Q. Could he take up the plea at that time? A. He did not take it up then. Q. Why was that? What was in front of it? A. Either previous announcements of ready or, again,

custody cases take priority. Q. Was there any other hearing set for that morning that took precedent? A. Yes. There was one in the original announcement on the docket call. There was an attorney out of Bexar County who had a trial starting at 1:30. I believe he also had a custody case here, a contested Motion to Revoke. And I think the announcement was approximately one hour.

Q. And the contested hearing -- was that defendant in custody?

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19 146 A. Yes. That is my recollection. Q. Did that take precedent over Mr. Graham's matter

with Ms. Chenoweth? A. That's correct. Q. Now, I refer you to page 63 of your record. Please

tell the Court today what the Court did before it broke for lunch.

A. At that point, once he recognized that it was 11:10 a.m. and that he had an announcement of one hour on a contested Motion to Revoke, he advised the three remaining cases to return at 1:15 while he resolved the Motion to Revoke and took a lunch break.

Q. Once the Court reconvened at 1:15, was there anything else in front of Ms. Chenoweth's case? A. His custom is -- which is he recalled the docket. Of course, there were only three cases left. He took those announcements and then began hearing the cases that were ready.

Q. What time did the Court start back up after its lunch recess? A. The Court started up at 1:34 p.m. Q. And was Mr. Graham present at 1:34 p.m.? A. He was not present. Q. Was Ms. Chenoweth present? A. Yes, she was present. Q. Okay. Did the Court call her case to be heard?

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20 147 A. Yes, he did. Q. And what happened next? A. The defendant announced, "I'm here." And the

bailiff then announced to the Court that Mr. Graham has not come back yet.

Q. Did you all wait for Mr. Graham? A. No, sir, we began hearing the cases that were ready

to be heard. Q. Okay. What time did you all finish the cases that were being heard? A. 1:46 p.m. Q. And, before that, did the Court have a conversation

with Ms. Chenoweth? A. Actually, at 1:46, once the last case that was ready was heard and resolved, then he had the discussion with Ms. Chenoweth.

Q. And what was that discussion? A. That discussion is: "Ms. Chenoweth, we're going to

reset your case. I was clear. He was to be back here at 1:15. I will get your attorney's attention and I will do that before I leave the courthouse today. Thank you. You're excused."

Q. At 1:46 you all convened court? A. We -- right, adjourned. Q. Okay. At 1:46, did you see Mr. Graham in this

courtroom?

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21 148 A. At 1:46 he was not present in the courtroom. Q. What did you start doing at 1:46? A. What I do when we finish for the day I start

breaking down my equipment. If there were any exhibits that were marked during any contested hearings or anything like that, I get with the clerk and make sure those are all turned over and then break down.

Q. How long does it take you to break down? A. Approximately 10 minutes, give or take, 10 to 12. Q. Did Mr. Graham eventually show up? A. Yes, he did. Q. Can you estimate about what time that was? A. I'm going to say it was -- I was almost through

breaking down. I don't remember if I had any exhibits or if I dealt with the clerk on anything that day. So approximately 10, 12 minutes after we adjourned.

Q. And, by estimation, what time was that? A. That would make it 1:55 p.m. Q. Now, on March 13th, you were recording the record as

well? A. That's correct. Q. Was Ms. -- what was Ms. Chenoweth's case set for on

that day? A. I don't see it stated here, but my guess would be that it would be for arraignment.

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22 149 Q. Now, was her name called on the docket that morning? A. Yes, it was. Q. Looking at your record, can you see what time it

was? A. Yes, 9:38 a.m. Q. And was Ms. Chenoweth present? A. She was. Q. Was Mr. Graham present for her? A. He was not present. Q. What is the discussion the Court had with

Ms. Chenoweth? A. With Ms. Chenoweth? Q. Correct. A. The Court states, "Is your attorney retained or

appointed?" The defendant replies, "Appointed." The Court: "Mr. Graham is appointed?" Defendant: "Uh-huh." And the Court says, "Stay put."

Q. Does the Court ask her if she's had any sort of contact with Mr. Graham? I refer you to page 6 of your report, record.

A. The Court asks Ms. Chenoweth, "Ms. Chenoweth, who is coming over from his office?" The defendant responds, "I don't know."

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23 150 The Court: "You don't know?" The defendant: "No, sir." The Court: "When your attorney gets here, tell

him I would like to talk to him." Her response was, "I don't even know if he's coming. I haven't talked to him at all since the day I -- when I came back after lunch and he never showed up."

Q. Looking at the record for the rest of March 13, did Mr. Graham ever show up that day? A. He did not. Q. Did he ever -- did someone from his office ever show

up that day? A. No, sir. Q. Did anybody announce for Ms. Chenoweth? A. No, sir. Q. Was Mr. Graham to be present on March 13th for any

other reason? A. I don't believe so. Q. Do you know if he was to be there on a Show Cause

hearing? A. I'm sorry. Yes, he was. Q. Did he announce for that? A. No, sir.

MR. PALMITIER: Pass the witness, Your Honor. THE COURT: Mr. Graham?

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24 151

CROSS EXAMINATION

BY MR. GRAHAM:

Q. You were talking about basically you were the court reporter on the 13th of March; is that correct? A. That is correct. Q. Okay. And also indicated that basically I did not

show up at that particular Show Cause hearing. Isn't that right?

A. That's correct, sir. Q. But it's also true that I filed a Motion for

Continuance insofar as the Show Cause hearing goes because I had prior court appearances in other counties. Are you aware of that?

A. I believe there was mention of that, yes, sir. Q. In other words, it wasn't a situation where there

was just a blatant disrespect for the Court date. Isn't that correct?

A. To my knowledge, no. Q. Okay. In addition to that, at that particular time

I had not been personally served or you don't know if I had been personally served with the Show Cause Order at that point prior to the 13th. Isn't that right?

A. That is correct. I did not know. Q. Okay. So, in other words, you couldn't say one way

or another if it had taken place, the personal service, or not.

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25 152 Isn't that correct? A. That is correct. Q. All right. Now, you were also talking about the

court appearance insofar as the February 25th. Is that correct? You were also the court reporter on that particular day?

A. I was. Q. Okay. And, typically, how long does it take for

pleas to be completed, an agreed plea? A. He gets through them pretty quick. I want to say five minutes, give or take. Q. Five minutes. Okay. But, on this particular day, the plea for Ms. Chenoweth was not reached. Isn't that right? It wasn't handled on that particular day, was it?

A. It ultimately was not. Q. Okay. Now, you were talking about earlier also that

you were very familiar with the court procedures and how the docket is called. Is that correct?

A. That is correct. Q. And so is it typical in a court procedure where, you

know, there is an announcement issue on a case -- typically, does the Court issue Show Causes for all of those attorneys who don't announce ready for whatever reason a few minutes after the docket call in the morning?

A. His typical procedure is that if it's been a

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26 153 recurring problem he will do it initially. A lot of times he will ask staff to prepare one. If --

MR. GRAHAM: I'm going to object to that, Your Honor. THE COURT: I'll sustain. Listen to -- just a second. I'll do it. Listen to the question and answer just that

question. THE WITNESS: Yes, sir. Q. (By Mr. Graham) So, in other words, when you say that it's not a regular practice to issue a Show Cause Order for attorneys that for whatever reason might announce ready, you know, a few minutes after the 9:00 o'clock docket call -- that's not a regular practice, is it?

A. Repeat your question, please. Q. It's not a regular practice for an attorney who

issues or says ready shortly after 9:00 o'clock docket call -- it's not a regular court practice to issue a Show Cause Order for all of those attorneys, is it?

A. Not to issue one, no, sir. Q. Okay. And so, on that particular day, were there

any other instances of individuals who may not have announced ready for whatever reason where their offices had to be called?

A. That's usually -- it usually does happen, yes. Q. Okay. Were Show Cause Orders issued for those

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27 154 individuals? A. I would have to go back and look through the docket. Q. Okay. You don't know? A. I don't know. Q. Now, you had also indicated there were a number of

contested hearings that were actually set on that particular day; is that correct?

A. I believe there was one. Q. Okay. And those contested hearings basically take

precedent over pleas, right? A. If they are custody cases, yes. He does normally try to take the shorter cases first and then the longer cases are put towards the back of the docket.

Q. Okay. But you just indicated a second ago that a plea just takes five minutes, so that would be one of those short cases. Isn't that correct?

A. That is correct. Q. But, on this particular day on the 25th, my plea or

the Chenoweth plea was not dealt with, even though it was a short case; isn't that correct?

A. That is correct. Q. Now, there was also a contested hearing that was

actually scheduled to take place after lunch as well; isn't that correct? After 1:15, right?

A. That is incorrect.

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28 155 Q. And so what remaining cases were there? Were they all pleas? A. There were three cases and they were -- none had announced contested. MR. GRAHAM: I'll pass the witness. THE COURT: Anything else? MR. PALMITIER: Just briefly, Your Honor.

REDIRECT EXAMINATION

BY MR. PALMITIER:

Q. You mentioned typically a Show Cause will not be issued for people who are late in the morning? A. Not -- not -- I believe the way he phrased the question was early in the day. Q. Is it typical in your experience over 15 years for an attorney not to show back up after being ordered to after a lunch break?

A. No, it's not typical. Q. What about the next hearing not showing up? A. That was the first.

MR. PALMITIER: Pass the witness. THE COURT: Anything else, Mr. Graham? MR. GRAHAM: Yes.

RECROSS EXAMINATION

BY MR. GRAHAM:

Q. Insofar as the Court date on the 13th of March, do

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29 156 you have any knowledge that suggests that, you know, I actually attempted to move that court date but was prohibited from doing so?

A. I have no knowledge of that. Q. Okay.

MR. GRAHAM: No further questions, Your Honor. THE COURT: Anything else? MR. PALMITIER: No further questions. THE COURT: Is he excused? MR. GRAHAM: Yes, Your Honor. THE COURT: You're excused. Thanks for being

here. You'll put the exhibit back together? THE WITNESS: Yes, sir, I will. THE COURT: Next? MR. PALMITIER: The State calls Chelsie

Chenoweth. (The witness entered the courtroom and was placed under oath by the Court.) THE WITNESS: Yes, sir. THE COURT: Have a seat up here, please. Scoot

up close to the microphone so everybody can hear you. Go ahead.

CHELSIE CHENOWETH,

having been first duly sworn, testified as follows:

DIRECT EXAMINATION

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30 157

BY MR. PALMITIER:

Q. Could you please state your name for the record? A. Chelsie Chenoweth. Q. Ms. Chenoweth, how do you know Mr. Graham? A. He's my Court-appointed attorney. Q. Okay. On February 25th, were you supposed to be

here in court? A. Yes. Q. What was that for? A. Some charges that I had. Q. Was Mr. Graham supposed to be here with you? A. Yes. Q. What time did you get here, if you remember, on

February 25th? A. Probably around 9:00 o'clock. Q. Was Mr. Graham here with you? A. Not yet. Q. Had you heard from him that day? A. No. Q. Had you heard from him at all prior to that? A. The only time I talked to him was one time when he

became my lawyer and I had called him and he talked to me about my case. That was the only time we talked ever.

Q. Did he let you know he was going to be late that day?

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31 158 A. No. Q. Do you remember around what time he showed up? A. I really don't. It was at least 30 minutes later. Q. Okay. You were set for arraignment that day. What

did you want to do that day? A. I was ready to get it -- get sentenced. Q. Okay. Were you able to do that? A. No. I got a reset. Q. Do you remember what time you were told to be back

in the afternoon that day? A. 1:15. Q. What time were you back that day? A. 1:15. Q. What time did Mr. Graham come back that day? A. I don't know. The judge released me before he came

back. Q. Did he call you to tell you he was going to be late? A. No. Q. That afternoon? A. No. Q. Did anybody from his office call you? A. No. Q. Do you know where he was? A. No. Q. What did you want to do that afternoon?

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32 159 A. Wanted to get sentenced. Wanted to get everything over with. Q. Were you able to do that that day? A. No.

MR. PALMITIER: Pass the witness, Your Honor. THE COURT: Cross-examine.

CROSS EXAMINATION

BY MR. GRAHAM:

Q. I represented you in your case before. Isn't that correct, Ms. Chenoweth? A. Yeah. Q. Isn't it true basically that the plea paperwork in

the case was done during the morning time? Isn't that right? A. Uh-huh. Q. But, for whatever reason, the Court did not hear

your case. Isn't that right? A. Yeah, he sent us to lunch. Q. And also isn't it correct that basically I had to

remind the Court several times about, hey, look, you have got a case that's ready for plea prior to the lunch hour? Isn't that correct?

A. Yeah, you did. Q. Because the Court basically continued on several

instances to skip over your case. Isn't that right? They didn't call your case?

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33 160 A. Oh, yeah. That day? Q. Okay. That's correct. A. Yeah, uh-huh. Q. In the morning time. Okay. A. Uh-huh. Q. And so basically it was a situation where, you know,

we had the plea paperwork done early in the morning, but yet you were forced to wait until the afternoon time. Isn't that correct?

A. Yes. Q. And you had to come back to court. Isn't that

correct? A. Uh-huh. Q. Okay. Did the Court, when they indicated that you

had to come back at 1:15 -- did they make any kind -- did the Court make any kind of a statement that, well, if you don't come back at a certain time that there could be a contempt? Did the Court say that?

A. I don't think so. Q. All he said was to be back at 1:15; isn't that

right? A. Uh-huh, yeah. Q. And the Court also indicated there were other cases

that it had in addition to yours after the lunch hour. Isn't that right?

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34 161 A. Yeah. Q. Did the Court make any kind of statements about any

contested hearings or other hearings that were going to happen after the lunch hour?

A. No. Q. But they indicated that there were other cases? A. Yeah. Q. Isn't that correct? Okay. So there was no

indication about when actually your case was going to go after 1:15?

A. Right. Q. Correct? A. Right. Q. You didn't have any specifics on that, right? A. Right. Q. And since the Court didn't provide me with any

specifics, would you agree with me that I wouldn't know specifically when your case would have been taken up after the lunch hour?

A. Yeah. MR. PALMITIER: Objection; speculation. MR. GRAHAM: I'll withdraw that, Your Honor. THE COURT: Okay.

Q. (By Mr. Graham) And -- so isn't it true that you were actually appointed a new Court-appointed attorney for your

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35 162 case? A. Yeah. Q. Is that right? A. Uh-huh. Q. And you also indicated you wanted to get this case

resolved on the 25th in the morning time as expeditiously as possible, right?

A. Yeah. Q. Okay. Now, would you say that the appointment of a

new attorney for your case -- would that have delayed the process or made it quicker?

A. I think it made it quicker because yesterday I finished. Q. Okay. A. Just one time. Q. Right. But this could have been something that

could have been resolved before. Isn't that right? A. Yeah. Q. Okay.

MR. GRAHAM: I'll pass the witness at this time, Your Honor. THE COURT: Anything else? MR. PALMITIER: No further questions, Your

Honor. THE COURT: Is she free to go?

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36 163 MR. GRAHAM: Yes, Your Honor. THE COURT: You're free to go. Thank you for

having to come down. Call your next. MR. PALMITIER: State calls Nick Reininger. (The witness entered the courtroom and was

previously sworn by the Court.)

NICK REININGER,

having been first duly sworn, testified as follows:

DIRECT EXAMINATION

BY MR. PALMITIER:

Q. Can you please tell us -- tell the record how you are employed? A. I'm employed by the Comal County District Court. Q. And which court is that? A. The 207th, 274th, the 433rd and the 22nd. Q. How long have you been in that position? A. Approximately three years. Q. Do you remember what you were doing on February

25th? I'm sorry. March 13th. A. Yes. I was working for Judge Gary Steel. Q. March 13th and February 25th. A. 274th District Court bailiff. Q. And particularly on February 25th, did you remember

what was going on that day?

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37 164 A. It was a mixed docket, nonjury criminal and civil cases. Q. Did you have any contact with Mr. Graham that day? A. Yes, I did. Q. And could you please explain on the record what the

contact was? A. Mr. Graham had a case, a criminal case on the docket. He came in in the morning docket, checked in with me. He was running a little bit late. He made contact with his defendant. I saw him throughout the day. We broke for lunch approximately around 12:00 o'clock. We came back at 1:15. There was a couple of cases left for the afternoon docket. We concluded the business of the docket that day for Judge Steel and Mr. Graham's case was the only case left.

Q. Did Mr. Graham show up for the afternoon? A. Eventually he did. Not -- not at the time we came

back. Q. What time was everybody supposed to be back at? A. Judge Steel told all the remaining cases on the

docket personnel to be back at 1:15. Q. Do you remember what time Mr. Graham showed up? A. It was around 2:00 o'clock, maybe a few minutes

before 2:00 o'clock. Judge Steel had just left the bench when Mr. Graham came in.

Q. Did you have a discussion with him at all at that

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38 165 point? A. I did because the judge had left the bench and Mr. Graham's client had already been released. Mr. Graham asked me where his client was. I said that the judge had excused her. I told Mr. Graham I would ask Judge Steel if he would like to talk to him in chambers. I went back in chambers. I asked Judge Steel if he would like to see Mr. Graham. He said that he would not like to see him, to inform Mr. Graham that he was going to issue a Show Cause.

So I came back out in the courtroom. I told Mr. Graham he did not wish to see him at this time, that a Show Cause Order was going to be issued.

Q. Did Mr. Graham have any explanation as to where he had been or why he was late? A. No. He responded to me, "Is the judge really going to issue a Show Cause Order for me being 45 minutes late?" I said I really had no say-so in the matter. That's just what he told me to relay to Mr. Graham. MR. PALMITIER: Pass the witness, Your Honor. THE COURT: Mr. Graham? MR. GRAHAM: I have no questions, Your Honor. THE COURT: All right. You can step down.

Thank you. You can remain in the courtroom. He's released from the Rule now, isn't he? MR. GRAHAM: That's correct, Your Honor.

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39 166 THE COURT: All right. Thank you. MR. PALMITIER: And the only other witness I

have, Your Honor, is a Cynthia Browne. It's in relation to the second Show Cause Order.

THE COURT: All right. Cynthia Browne. (The witness entered the courtroom and was

placed under oath by the Court.) THE COURT: Come up here and have a seat, please.

CYNTHIA BROWNE,

having been first duly sworn, testified as follows:

DIRECT EXAMINATION

BY MR. PALMITIER:

Q. Would you please state your name for the record? A. Cynthia Browne.

MR. GRAHAM: I'm going to object to the State proceeding on this particular Show Cause. The only Show Cause Order that I had notice of was the one insofar as Ms. Chenoweth goes, Your Honor.

THE COURT: That's overruled. Go ahead.

Q. (By Mr. Palmitier) How do you know Mr. Graham? A. He's my Court-appointed attorney. Q. Is he still your Court-appointed attorney this day? A. I fired him the last time I was in court.

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40 167 Q. The last time you were in court, do you remember what day that was? A. Last week. I don't remember what day. Q. Do you remember why you were here? A. I have no idea why I was here. Q. Were you set to be here for a jury trial? A. Yes, on March 31st. Q. Now, do you remember that day? We called the docket

and we called your name for announcements? A. Yes. Q. What happened? A. My attorney wasn't here. Q. Were you here? A. Yes. Q. Were you ready for trial? A. Yes. Q. Okay. Had you spoken to your attorney before that

day? A. Probably like a month prior maybe, maybe three weeks. I'm not sure. Q. Okay. Had he told you that he was not going to be there that day? A. No. Q. Had anybody from his office told you he was not

going to be there that day?

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41 168 A. No. Q. Were you otherwise ready to proceed to trial? A. Yes. Q. Do you feel your attorney was ready to proceed with

trial? A. Yes. Q. Had you all discussed it before? A. Yes. Q. Had not for him not being here, you would have been

ready to go to trial? A. Yes. Q. And were we able to do that that day? A. No. Q. Why is that? A. I don't know why I was called for court that day

because I had my trial on March 31st. I was kind of confused why I was now coming on March 31st.

Q. Okay. On that day that you were in court, did you ever hear from your attorney? A. No. Q. Okay. Or anybody from his office on that day? A. No. Q. Okay. What about the day of trial? Did you hear

from your attorney? A. Yes.

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42 169 Q. And were you ready to proceed to trial that day? A. No. It got reset to May 12th.

MR. PALMITIER: Pass the witness, Your Honor. THE COURT: Cross-examine.

CROSS EXAMINATION

BY MR. GRAHAM:

Q. Ms. Browne, I don't know if you are actually aware of this, but your case was actually far down the list insofar as cases that were going to trial. Are you aware of that?

A. Yes. Q. In other words, it wasn't likely that your case was

actually going to go to trial because the Court also had a capital murder case that was going on that particular day. Isn't that right?

A. Yes. MR. GRAHAM: I'll pass the witness. THE COURT: Anything else? MR. PALMITIER: No further questions. THE COURT: You can be returned. Thank you for

coming. Anything else? MR. PALMITIER: No, Your Honor. No further

witnesses at this time. THE COURT: Mr. Graham? MR. GRAHAM: I would like to give some testimony

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43 170 in this case, Your Honor. THE COURT: Sure. Come on up. MR. GRAHAM: Whether I do it here or on the

witness stand -- how would you like me to do it? THE COURT: Let's do it up here on the witness stand. MR. GRAHAM: Sure. (The witness was placed under oath by the

Court.) THE COURT: Have a seat, please.

CHRISTOPHER GRAHAM,

having been first duly sworn, testified as follows:

DIRECT TESTIMONY

THE WITNESS: It's just a narrative format? THE COURT: Introduce yourself just like you

were calling a witness. THE WITNESS: Sure. My name is Christopher Graham. I'm an attorney. I have been Court-appointed on several cases, the Chelsie Chenoweth case and also the Cynthia Browne case.

And in response to the State's -- or actually the Show Cause Orders that were issued in the Chelsie Chenoweth case, I just wanted to start with how this whole process began.

Basically, on the 12th of February, 2014, I tried to set this case in order to get it done and also pled

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44 171 out on the 13th because I had other cases that were set on that same day. Okay. I was actually unable to do so because when I got to court on the 13th what happened was the Court indicated that somehow the case was not on the Court docket. This was a situation where the Chenoweth case probably could have been dealt with on that day. I was then told the case was reset to the 25th of February, in which case I then appeared again on the Chenoweth case in order to see if we could get it resolved. My understanding is the case was set for an arraignment setting.

And at that point I didn't hear the Chenoweth case actually had been called insofar as the docket goes. And so I walked in the court and I said, "Well, has the case been called?"

And the Court then makes the notation. Shortly thereafter I negotiate with the

prosecutors, were able to work out a deal for her insofar as a plea goes. The plea paperwork was signed. And, for whatever reason, I had difficulty in order to get the plea actually heard. This is about maybe 9:30 or maybe 9:45, somewhere in there. It didn't take very long in order to get the plea paperwork done in the case.

And so basically the Court then goes on a break. I'm trying to get the plea done and actually heard by the Court. So this is a situation where basically from almost

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45 172 10:00 o'clock until about 1:15 when the Court reconvenes after lunch I'm trying to get my plea done. It doesn't make sense to me as to why it's taking so long in order to get this plea done in order to move this case.

In order to use my time efficiently, I'm a -- I'm a solo practitioner. And I had a case that was actually set for trial in the next few days in San Antonio. I figured that once the Court broke for the lunch period from about, you know, 12:00 o'clock to about 1:15 or, you know, give or take, 11:45 to about 1:15 I would be in a position to go ahead and visit one of my clients who was in the Bexar County jail. So that's what I tried to do because I had an investigator who was going to be talking to him also at that time. So I wanted to make the most effective use of my time.

So I talked to my client down there in preparation for trial in Bexar County. Then I come back. And, for that reason, I was a few minutes late. Now, I didn't think that it was going to be a problem because, No. 1, the Court did not tell me that, you know, you are automatically going to get a Show Cause issued.

In addition to that, based on the Court and how it functioned before, you know, things don't typically start on time in this particular court. So I thought that I had a few minutes in order to spare.

In addition to that, the Court also indicated

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46 173 that there were -- there was a contested hearing that was going to be heard shortly after the lunch hour. So I thought that I would be okay.

And so I came back and then I tried to discuss the matter with the Court about, you know, "Where is my client at? What's going on here? This is the reason for the delay." And then I get hit with a Show Cause.

Now, I've practiced law for quite some time in various counties and I have never seen a situation where an attorney gets a Show Cause, you know, after one issue. And it's an excusable issue. And we're talking about just a few minutes late.

Now, the thing about it is this is not a situation where there was any kind of deliberate disrespect to the administration of the court by no means. It was a situation where, you know, I have got to move around to different counties in order to take care of cases that are set for trial. So I did show up, you know, albeit it a few minutes late.

And insofar as the March 13th, 2014 hearing goes, the Court issued me a court date in order to be here. However, I had already had other court dates that were set that I could not move in Williamson County. So, as a result of that, I filed a Motion for Continuance. It was denied. I tried via telephone in order to talk to the Court about moving

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47 174 the Show Cause date and that was again denied. Now -- so I think that -- based on the circumstances, I think that a Show Cause or at least a contempt finding in this case is inappropriate. It's not a situation where there was any kind of intentional disregard for Court orders.

THE COURT: Cross-examine?

CROSS EXAMINATION

BY MR. PALMITIER:

Q. What time did you show up on February 25th? A. Shortly after 9:00 o'clock. Q. Exact time? A. I don't know the exact time. Q. Were you there for the docket call when it started? A. I didn't hear her name called. I didn't hear Ms.

Chenoweth's name called. That's why I had to approach the bench in order to make sure that, you know, I was registered as being here.

Q. The reason you didn't hear her name called -- is that because you weren't there? A. Because I was out in the hall. Q. Did you let Ms. Chenoweth know that you were out in

the hall? A. No. Q. Why were you out in the hall?

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48 175 A. I believe it was a phone call I was taking. Q. Who was that phone call with? A. It was one of my clients out of Dallas. Q. What was the name? A. Ms. Harper I believe. Q. What is her first name? A. I don't know. I don't know what the first name is

off the top of my head. Q. Do you know what case it relates to? A. It was -- I think it was a breach of contract case

or something like that. Q. Do you know which court it was set in? A. Court No. 3 I believe out of Dallas. Q. She is the plaintiff or the defendant in that case? A. I think she's plaintiff. Q. Who is the defendant in that case? A. Not sure. Q. So what time did you come in the courtroom on

February 25th? A. I would say maybe about 9:15, somewhere in there. 9:15, 9:20 I would say. Q. You just notified the Court today that you had lots of things to do that day? A. I don't understand "lots of things." What do you mean?

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49 176 Q. You said you were a busy solo practitioner. You had to be in San Antonio. You had to go to the jail? A. Right. I had a case, State versus Kochanski (sic) that was set, you know, just a few days away. It was imperative that I talk to him in jail on that day. I have got to make, you know, productive use of my time. I just can't sit around during the lunch hour, so I wanted to make productive use of my time.

Q. Did you notify the Court that you had to go do that? A. No, I thought that I could actually make it. I

thought that I could go there and make it back. Q. When you realized that you weren't going to make it back, did you notify the Court that you were going to be late? A. I did not. I wasn't really concerned about it because I figured that the Court had, you know, several hearings, contested hearings that were going on, and the Court wouldn't take up Ms. Chenoweth's case immediately.

Q. You got to look at the record this morning, correct? A. The one that you issued in evidence? That one? Q. And you got a copy of it, right? A. I believe I got a copy via e-mail, if it's the same

document. Q. Okay. And also by certified mail? A. Not by certified mail. I think someone from my

office may have picked it up, but I did get the copy by e-mail.

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50 177 Someone sent it to me via e-mail. Q. Have you had a chance to review it? A. I reviewed it, more or less. Q. Okay. Going over what the Court had on its docket

that day, there were custody hearings it had to take up and the contested hearing?

A. Correct. Q. And that was it. All of the cases left in the

afternoon were just you and two other people. A. Perhaps there were other cases that were actually -- perhaps there were cases that were resolved. I'm just going by what the Court said. In other words, they were contested hearings. That's what I heard before I left to lunch.

Q. But if you read the record and what the Court said that day, they had a contested hearing they were taking up before lunch. There were no contested hearings taken up after lunch.

A. I don't believe that I heard before or after. I heard contested hearing and that was going to be taken up before my case is what -- I didn't know when it was going to be taken up. I would assume that it would have been taken up after lunch. That's what I assumed.

Q. But after reading the record and hearing it in court today, there was no contested hearing that afternoon, was there?

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51 178 A. I didn't actually peruse -- I didn't look at it in detailed fashion. I got it, but I kind of skimmed through it. Q. Would you like a chance to look at it right now? A. Sure. Q. If you could, look at it for its accuracy as to

whether or not there was a contested hearing scheduled in the afternoon on that day.

A. What was your question again? Your question is to see whether or not there was a contested hearing in the afternoon? Is that your question?

Q. Was there a contested hearing that was announced for that afternoon? A. Okay. Page 62 talks about the last custody case I'll take before -- or that last case I will take before we start the contested hearing is Rick Anthony Cruz. I've got a punishment in Lopez still pending. I've got Martinez we're about to start.

You know, this is shortly before I believe we actually broke for lunch, so all of this stuff was going to take place prior to, you know, dealing with the Chenoweth plea is what my understanding was.

Q. What time was that at? A. This is -- this is between 10:53 and 11:27 a.m. Q. If I refer you to page 62 of the record -- A. Right.

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52 179 Q. Okay. A. Are you asking me? Q. Yes. A. Right. I'm talking about page 62 where he's talking

-- he's got all of this -- these other cases that were going to proceed. And this is after I was asking about the status of the Chenoweth case after the Court had neglected to call it.

Q. Okay. Right after you say, "Your Honor, if the Court can take up -- Ms. Chenoweth as well," what does the Court say?

A. The Court says, "Eventually. It's not a custody case. I have a custody case that's ready." So -- Q. You say, "Okay." What does the Court say then? A. "How long is that going to take? It's already ten

after 11:00." Q. What does Mr. McCrary say? A. "I don't think it will take too long." Q. Okay. So you have got a contested hearing that the

prosecutor announces is not going to take too long. Is that correct?

A. Right. That's what it says. Q. And then what does the Court say? A. The Court says, "Well, I'll tell you what. I'm

going to reset -- for those counsel that weren't here at 9:00 o'clock, Lopez will be reset for 1:15. I'm going to do

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53 180 Martinez." And then the Court talks about Mr. Rodriguez. "I've got to get this other one done. Reset for 1:15." So it looks like to me there was a lot of other cases that were -- that were going to go. Q. By "a lot of other cases," he says, "Well, I'll tell you what. I'm going to reset -- for those counsel that weren't here at 9:00, Lopez" -- that's one, right?

A. Right. Q. He's going to do Martinez right now? A. Right. Q. "Castilleja. I know you were here, Mr. Rodriguez,

but I've got to get this other one done. Reset for 1:15. Chenoweth will be reset for 1:15."

So how many cases is that that's reset for 1:15? A. And also it says that I will -- I'll take this contested hearing. Rick Anthony Cruz is what he's also talking about as well, as the Court says. So I guess four or five cases, four cases, give or take.

Q. To be reset at 1:15? A. That was my understanding. Q. If you read the record right there -- A. Right. Q. -- how do you understand that to be he's resetting

the contested hearing after 1:15?

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54 181 A. It doesn't say when he's going to reset it. It just says we're going to start a contested hearing. Q. So what time did you show back up after lunch? A. I would say maybe about 1:35, give or take, because

it took them awhile in order to actually transport the prisoner or the defendant from his custody -- from his cell in San Antonio. And they were running behind, and also the traffic getting back. But I did get back.

Q. Who was that that you were visiting in San Antonio? A. It was Kochanski. Q. What was the first name? A. Anthony Kochanski. Q. Do you know the docket number for that case? A. No, I don't -- Q. Do you know what court it's set in? A. Off the top of my head, no. Q. What was so important that day that you had to go

visit him? A. Well, there was an investigator who was helping me prepare for trial in this case and he had an imminent trial setting. And the only time I could meet with the investigator and also get with him and Kochanski was at that time during lunch. And I wanted to make productive use of my time at that time. I just didn't want to sit out here and just do nothing.

Q. Was it actually set for trial?

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55 182 A. It was. Q. Did it go to trial? A. It did not on that particular day. It was moved.

But considering the amount of time that Mr. Kochanski had been in jail, there was a high probability it was going to go at that time.

Q. Once again, did you notify the Court that you were going to be running late? A. I did not, no. Q. Did you ask for a reset to go handle the matter in

San Antonio? A. A reset? A reset for the Chenoweth case? Q. Right. A. I did not, no, because I thought that I could get

back in time and the contested matters would be completed and I could come back and deal with it.

Q. And it's your testimony here today that you showed back up at 1:35? A. I don't know the exact time, but it was a few minutes after -- it was a little bit of time after 1:15. I didn't log it down or anything like that.

Q. You did not tell the bailiff that you were 45 minutes late? A. No, I did not. It was before 2:00. I know that. Before 1:50, probably before 1:45 I would say.

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56 183 Q. You have had a chance to look at the record, right? A. Correct. Q. You saw what time it ended at? A. Well, I know what the court reporter said. However,

he wasn't in the courtroom when I got here. Q. So his testimony was false earlier then? A. That's correct. Q. And so would the bailiff's testimony be false? A. I did speak to the bailiff. Insofar as his time

estimates when I got here, I don't know if that's accurate. But when I got here, I don't recall seeing the court reporter here.

Q. Move forward to the March 13th date. Why were you supposed to be here? A. Presumably for a Show Cause setting, Show Cause setting in the Chenoweth case. Q. So you were set for two -- two matters on that date? A. One, as far as I know. Q. Ms. Chenoweth and your Show Cause? A. Right. Right. Q. Two separate matters? A. Okay. Yes. Q. Did you show up that day? A. I did not, no. Q. Why is that?

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57 184 A. Because I had prior hearings that were scheduled in Williamson County on that day. And I filed a Motion for Continuance, you know, after I got the Show Cause via fax.

Q. When did you file your Motion for Continuance? A. A few days after it was faxed to me, that the Show

Cause was faxed to me. I don't remember. A day or two after. I don't know off the top of my head.

Q. Would you like to see a copy of the Court's record? A. Sure. Q. Do you remember what day the notice to be here was

sent to you? A. Maybe a day or two after the 25th of February. Q. So February 25th? A. A day or two after that. I remember it being that

long. Q. February 27th? Okay. That's when you were given notice to be here for Ms. Chenoweth and your Show Cause hearing?

A. Correct. It was sent to me via -- I think it was sent by fax. Q. And your testimony today is that you sent in the Motion for Continuance shortly thereafter? A. Right. I don't know exactly when it was, but I did send in a Motion for Continuance as well as my response to the Court's order to show cause.

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58 185 Q. I'm showing you what you filed as Response to Court Orders to Show Cause and Request for Continuance. For the record, can you read what date that was filed on? A. It says here March 10th, 2014. Q. Okay. And so how long after you received notice was

that then? A. Apparently, the -- it was file stamped March 10th of 2014. Q. Okay. How many days is that before you were set to be here? A. Just three days apparently. However, it was actually mailed in. That's why it's -- Q. When did the Court receive it? A. All the documents are stamped March 10, 2014. I

assume that's when it was received and also entered into your system or the court system.

Q. Did you get a ruling on that Motion for Continuance? A. Did not, no. Q. Yet you failed to show up on March 13th? A. That is correct. Q. Going back to that Motion for Continuance, was that

a sworn-to affidavit? A. It was an unsworn declaration is what it was. Q. Okay. So you didn't -- filing an unsworn

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59 186 declaration, not getting a ruling, you failed to show up on March 13th for Ms. Chenoweth's matter and your Show Cause?

A. That is correct. I didn't show up. Q. Why couldn't you be here that day? A. Well, I figured one of my associates was going to be

able to make it on that particular day. But, apparently, he had some kind of issue with the South by Southwest issue that was going on in Austin and he could not get down here.

Q. Were you able to make it that day? A. I was not, no. Q. Why not? A. Because of the hearings that I had in Williamson

County. Q. What hearing was that? A. I had two or three cases that were set on that

particular day. I don't recall who they were off the top of my head, but I did have several prior arranged court appearances in Williamson County.

Q. You don't know the names of those defendants? A. I have got it in my calendar, but I don't know off

the top of my head, no. Q. Do you remember which court you were in? A. No. Q. What time did you have to be there? A. Morning time, 9:00 a.m.

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60 187 Q. What time did you finish up there? A. Probably noontime. Q. You don't remember which courtroom you were in? A. I don't recall, no. Q. Do you remember which judge you were in front of? A. Off the top of my head, no. That was my first

appearance in Williamson County. I do not remember. Q. You did make an appearance that day? A. I did. Q. You will be on the record there that day? A. Yes. Q. After finishing up, where did you go next? A. I don't recall. I think I spoke to my operations

guy in my office and that was pretty much it. I think I went back to Dallas is what I think insofar as taking cases --

Q. Did you check in with the Court here? A. No, because I filed a Motion for Continuance. I

would assume the Court would either deny it or reset the case. That's what I figured was going to happen.

Q. Looking at the motion you filed -- A. Right. Q. Look at No. 5. You say, "The Court inexplicably

took a break from conducting court activities from approximately 9:45 to 11:20."

Looking at the record, is that correct?

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61 188 A. Well, those are estimates based on my estimation. I know it was a long time that the Court took a break and my plea was not handled during that period.

Q. Are the times correct? A. I didn't record them down specifically, so it's an

approximation. Q. Knowing what the times are now, is that a correct estimate? A. I would say, give or take, a correct approximation, yes. Q. Would you like to look at the record? A. I don't see where it says in here specifically. All

I know is that the break was protracted. Q. Looking at No. 9, "I conducted a consultation in Bexar County and then came back to the Court approximately 1:35 to complete the plea in this case."

It's still your testimony today that you showed back up at 1:35? A. Now, insofar as, you know, did I write it down at that time as when I got back? It's an approximation. I think it was about 1:35 when I got back. That's correct.

Q. After looking at the record and hearing testimony today, do you still think that's correct, approximately 1:35? A. Give or take, yes. It's a correct approximation. Q. Now, that day --

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62 189 A. I wasn't actually -- I didn't actually talk to the bailiff until shortly thereafter, but I was here around 1:35. Q. On February 25th, was the Court able to dispose of Ms. Chenoweth's case? A. No, it was not. Q. On March 13th, was the Court able to dispose of Ms.

Chenoweth's case? A. I would assume not at that point. I assume the Court basically appointed somebody else to the case. Q. Why was the Court not able to do so on February 25th or March 13? A. Insofar as -- I'm just kind of guessing here, but on the 25th I really don't have an answer for it. I think certainly if pleas take five minutes in order to do, there is no reason why we should have been forced or I should have been forced to wait from, you know, 10:00 o'clock to 1:15 in order to do a plea. I don't know the reason of that. I don't know the answer to that.

Q. And, on March 13th, why was the Court not able to dispose of Ms. Chenoweth's case? A. Because the Court gave me an arbitrary date where I had preexisting hearing dates that were set in Williamson County on that day. And I wasn't able to be present and also my associate could not get here. And he apparently had communication with the Court about his difficulties getting

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63 190 here because of an accident in downtown Austin, Mr. James Lacy. Q. So would you say due to your tardiness, unable to be in court, we were not able to handle Ms. Chenoweth's case in an expeditious manner?

A. I would say due to the breaks and the Court's tardiness, the plea was unable to be handled. The plea could have been handled on the 25th of February.

Q. So it's the Court's fault? A. Well, all I know is the plea paperwork was done in

the morning time and, you know, there had to be a wait until 1:15, when, you know, the court reporter indicated that basically pleas just take five minutes in order to get done.

Q. And Ms. Cynthia Browne's case. A. Uh-huh. Q. What was it set for on the Thursday prior to trial? A. My understanding it was actually set for -- the

standard protocol here, my understanding now, is that the Thursday prior to trial there is some kind of an announcement. However, I called about Cynthia Browne's case. And, No. 1, it was set so quickly for trial after her prior court date, which was kind of strange I thought, and also because of how young her case was it was far down the list. The probability of it going was almost nonexistent. In addition to that, I was told by Mr. Steve Thomas, one of the court coordinators here, that there was a capital murder that was going and so therefore

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64 191 Ms. Browne was not going to go at all. Q. What did the notice say in regards to being here on the Thursday prior to trial? A. After -- I assumed that the notice specified you have got to be here for a pretrial date if it's set or a court date or trial date if it's set. Sentence No. 2 or 3 it says the Thursday prior to trial there are announcements.

Q. Did you show up the Thursday prior to trial to make an announcement? A. I did not, no, because I was told the case would not go. Q. Did that make you believe that you still did not have to announce? A. Yes, and also I didn't think there was protocol until I read it more thoroughly about having to appear the Thursday prior. I didn't know there was an automatic setting.

Q. Do you typically have to announce ready for trials, not ready? A. Most of the places that I operate in typically there is a pretrial. And at that point you announce ready or not ready or there is a specific setting on a specific day and you announce ready. But sometimes, you know, basically if there are other cases that are definitively going to go and the Court is not going to pull your client over and the case is not -- there is no need to make an announcement if the case doesn't

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65 192 go. Q. Does that mean that you would not have to then show up? A. If the case doesn't go, sometimes an e-mail, sometimes a call. "Look, Mr. Graham, your case is not going to go." That's how it works in some of the counties.

Q. You have been doing this for a long time, right? A. For awhile. Q. Do you know that on a list -- on a docket sheet

sometimes cases don't go? Sometimes they are supposed to go and they don't, right?

A. Correct. Q. That's common knowledge? A. Correct. Q. Routine in your practice? A. Correct. Q. Okay. So what would then prevent you -- or what

would make you think that you would not have to make an announcement?

A. Well, like I said before, I thought that my appearance was required even on a pretrial day or a trial day. And that wasn't the case. But the notice says the Thursday prior you need to be here to make an announcement. I thought the case wasn't going to go. I didn't think the announcement was ready. I thought my required appearances were on a

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66 193 pretrial day that was set or a trial day. Q. But you acknowledge that's not what the notice told you to do? A. Right, and I didn't read it until -- until later, that particular line. MR. PALMITIER: No further questions. THE COURT: Do you have any more questions of

yourself? THE WITNESS: No, Your Honor. THE COURT: You can step down. THE WITNESS: Thank you very much, Your Honor. THE COURT: Call your next. MR. GRAHAM: No other witnesses, Your Honor. THE COURT: State have anything else? MR. PALMITIER: No, Your Honor. We'll rest. THE COURT: Both sides rest and close? MR. GRAHAM: Yes, Your Honor. THE COURT: State has the right to open and

close. MR. PALMITIER: Briefly, I think it's all before the Court in the records and the testimony you heard this morning, Your Honor. Clearly, Mr. Graham did not show up on time on February 25th which, in and by itself, is not enough for a Show Cause. But then it's not -- I guess we're not on Mr. Graham's time. It's on the Court's time. There are things

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67 194 that a Court must take up first. And that's always been the Court's practice. Custody cases have to go first. They have to go back to the jail. They take precedent. And Mr. Graham was ordered by the Court to be back here at 1:15, which he failed to do so.

It's all in the record, Your Honor. You can look to the testimony from Bailiff Nick Reininger. The testimony from Rick Roberts, the court reporter, was that he didn't show up until closer to 2:00 o'clock, 45 minutes late. They were unable to handle Ms. Chenoweth's case that day, although she was ready to plea and wanted to plea. That, in and by itself, is probably not enough to get to the Show Cause.

However, what happens next is on March 13th Mr. Graham fails to wholly appear on that date. That is what gives rise to the Show Cause Order and what he needs to be held in contempt for, Your Honor.

Looking at the Court's record and the testimony you just heard, he received notice of it on February 25th via fax and February 27th by mail. And on March 10th he filed his notice for continuance. It was an unsworn declaration. And without getting a hearing on it or ruling, he wholly failed to show up or anybody else from his office. And, once again, Ms. Chenoweth's case had to be reset.

And, additionally, he was there -- noticed to be there that day for the Show Cause hearing which he failed to

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68 195 show up to as well. That, Your Honor, is enough to rise to the level of contempt. It slowed down the Court's process in that we were trying to move Ms. Chenoweth's case. We were unable to do so on two different occasions, Your Honor.

Additionally, in regards to Ms. Browne's case, he was noticed as well to be here on the Thursday before and failed to do so. Although he may have spoken to somebody about whether or not another case was going, that still does not relieve him of having to show up and make an announcement of ready or not ready on the Thursday prior to trial. For that, Your Honor, the State is asking to hold him in contempt.

THE COURT: Mr. Graham? MR. GRAHAM: Your Honor, the State actually

indicated a second ago that various actions that allegedly were committed by me do not rise to the level of contempt. In other words, they are saying that basically that the 25th appearance -- that didn't rise to a level of contempt in what took place on that particular day. However, a Show Cause Order was actually issued on that particular day. You heard testimony from the court reporter that indicated that it's not standard practice to issue a Show Cause Order under these circumstances. In other words, there were other situations where attorneys may have been a few minutes late insofar as making a docket announcement, but they didn't get, you know, Show Cause Orders issued.

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69 196 For whatever reason, it seems as if I have been singled out here and unjustifiably so. This is not a situation where there was any kind of intentional disrespect to the Court. I was here that particular morning. I showed up. I tried to set the case before. For whatever reason, the case, insofar as Ms. Chenoweth goes, was not set on the 13th. I came back again in order to get the case finalized and waited for numerous hours to order to try to get the plea done. And, for whatever reason, we still could not get it done, each though the Court, you know, would have taken 5 or 10 minutes in order to hear a plea.

In addition to that, insofar as -- you know, I'm a solo practitioner, Your Honor, and there are other arrangements and other things I have got to do. I just can't wait in one court in order to wait for a plea to take place. I wanted to make constructive use of my time during the lunch hour and I figured that I was able to go to San Antonio, talk to Mr. Kochanski that was actually set for trial and make it back.

The action of the jailers there insofar as not getting Mr. Kochanski back from the jail in a prompt fashion and also traffic issues necessitated my taking a few minutes. However, I was here in the afternoon again, after having waited for numerous hours, to do the plea for Ms. Chenoweth. And, to my chagrin, the case had basically been -- been reset and she

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70 197 had been dismissed. Now, insofar as the March 13th hearing, this is not also my situation where basically I was trying to disrespect the Court in any way. By all means, I filed a Motion for Continuance in order to alert the Court that, hey, I have got a preexisting hearing in a different county and therefore I can't make it.

What I also did was have one of my associates, Mr. Lacy, try to make it. He had contact with the Court. And basically he was unable to make it due to an accident in downtown.

So I think that if you look at this, if you look at the law that's applicable to Show Causes and also to contempt situations like this, this is not a situation where I obstructed the administration of justice of this Court here. If anything, the Court has somewhat delayed this process because Ms. Chenoweth's plea could have been taken a long time ago. And I think that appointing a new attorney on the case actually delayed the process. This was a case that I was intimately familiar with. This is a case where plea documents were already drafted. And so there was no reason to appoint somebody else and waste additional time on this plea.

The -- there is some case law that talks about in these kinds of cases that contempt is not to be presumed in these kinds of cases. In other words, contempt is actually

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71 198 presumed not to exist and that -- and that basically the Court needs to look for things that obstruct the administration of justice. That was not the case here. That was not my intent here. So I would ask the Court not to find a contempt in this case and proceed forward.

THE COURT: Anything else from the State? MR. PALMITIER: No, Your Honor. THE COURT: In Cause No. CR2013-519, In Re

Christopher Graham, the Court finds insufficient evidence to hold the defendant in contempt.

In Cause No. CR2013-366, it appears to the Court that the defendant seems to make his own determination as to when he should or should not arrive in court from all the evidence the Court has heard today. It's a continuing pattern. Therefore, the Court finds that the defendant did fail to arrive on time at the 9:00 a.m. docket call on February 25th, 2014. The defendant failed to return to court at 1:15 p.m. on February 25th, 2014, as instructed by the Court; that Mr. Graham failed to appear in court on March 13, 2014, for Cause No. CR2013-366, State of Texas versus Chelsie Michelle Chenoweth, as well as Mr. Graham's own Show Cause noticed on that date without a grant of continuance or a leave from the Court. Mr. Graham's conduct does obstruct the administration of justice with the pattern that the evidence today has shown.

The Court now holds you in contempt in Cause No.

ATTORNEYS' REPORTING SERVICE

72 199 CR2013-366 and sets your punishment for confinement in the Comal County Jail for a period of 15 days and a fine of $300.

You can go with the bailiff. MR. GRAHAM: Can we -- can we postpone that

particular commission? THE COURT: No, you can go with the bailiff now. An appeal bond at $5,000. MR. GRAHAM: Appeal bond $5,000? THE COURT: Yes. MR. GRAHAM: Okay. (End of Proceedings)

ATTORNEYS' REPORTING SERVICE

73 200 C E R T I F I C A T E STATE OF TEXAS ) CAUSE NOS. CR2013-519, CR2013-366 COUNTY OF COMAL )

I, DOTTIE NORMAN, Deputy Official Court Reporter in and for the 274th Judicial Court of Comal County, Texas, do hereby certify that the above and foregoing constitutes a true and correct transcription of the hearing in the above-styled and numbered cause, all of which occurred in open court and reported by me.

I further certify that I am neither attorney nor counsel for, related to, nor employed by any of the parties to the action in which this testimony was taken. Further, I am not a relative or employee of any attorney of record in this cause, nor do I have a financial interest in the action.

I further certify that the total cost for the preparation of this transcript is $472.00. Witness my official hand this the 19th day of January, 2015.

/s/ Dottie Norman ____________________________ DOTTIE NORMAN, Texas CSR 2283 Expiration Date: 12/31/16 1806 Toro Canyon Road Austin, Texas 78746 (512) 327-4650

ATTORNEYS' REPORTING SERVICE

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PAGE VOL.

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P R O C E E D I N G S NON-JURY DOCKET THE COURT: Okay. I've got some civil cases. Let me call them and get announcements and then I'll take them up when I can after I've dealt with at least calling the criminal docket.

2013-1144, Adams and Adams versus Lakecroft and Western Hemisphere Investments. MS. BASCON: The plaintiffs are present, Your Honor. 30 minutes? MR. FAHLE: I think that's right. THE COURT: What are you attempting to continue? MS. BASCON: I have a hearing on a Motion for

Summary Judgment scheduled for March 13th and he's looking to push that back.

THE COURT: Okay. See if you can work something out. I'll mark you as ready and I'll call the criminal docket and deal with it accordingly.

MS. BASCON: Thank you, Your Honor. THE COURT: Thank you. 2013-1296, in the Matter of the Marriage of

Dove. Give them a call and see if they're going to come. 2012-1030, Skidmore versus Brown and Prestige Gunite. MR. SOMMERS: The movant is ready, Your Honor.

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Five minutes or less. THE COURT: And your client is Ms. Skidmore? MR. SOMMERS: Mr. Skidmore. Yes, Your Honor. THE COURT: I'm sorry. Is Mr. Skidmore here?

Is there any filed opposition from the defendants? MR. SOMMERS: No, Your Honor. I called them yesterday morning to see, but neither of the other attorneys called me back.

THE COURT: Let me see that file. THE CLERK: (Complies.) THE COURT: If you will approach Mr. Sommers. MR. SOMMERS: (Complies.) THE COURT: I assume you've given all of the

required notice? MR. SOMMERS: Yes, Your Honor. Here is the original motion to withdraw. Based upon the issues that have occurred, I assumed that Mr. Skidmore would consent.

THE COURT: Okay. MR. SOMMERS: I gave him until yesterday to

consent. He didn't consent, so we filed a grounds motion to withdraw. Basically our relationship has deteriorated to such an extent that I can't, in good faith, represent him or put him on a witness stand.

THE COURT: Well, he just didn't get to know you very well.

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(Laughter.) MR. SOMMERS: That is the proof. That's the

letter attached to it showing that the motion sent to Mr. Skidmore was sent.

THE COURT: I'll mark this as Movant's Exhibit 1 and admit it. MR. SOMMERS: Thank you, Your Honor. And I would rather not go into the factual basis for what occurred. THE COURT: He's not here. You've given proper notice. There's no objection from the other side. You've given his address in your motion. Have you got an order?

MR. SOMMERS: Yes, Your Honor, I do. THE COURT: The Motion to Withdraw is approved. If you would do me the favor of contacting

opposing counsel and letting them know that I've signed this and what his address is for future notices.

MR. SOMMERS: Absolutely, Your Honor. And I will go ahead and send a copy to all parties involved in the case, too.

THE COURT: Okay. MR. SOMMERS: Can I take it to the clerk's

office and get a copy? THE COURT: I'm going to return your motions. I assume they're already filed? MR. SOMMERS: Yes, sir, Your Honor.

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THE COURT: I've got your exhibit and order. And if you will just deal with my clerk, she will tell you -- MR. SOMMERS: Okay. THE COURT: -- what she allows and doesn't

allows. MR. SOMMERS: Thank you, Your Honor. May I be excused? THE COURT: You may. Good seeing you again, Bill. MR. SOMMERS: Yes, Your Honor. THE COURT: And temporary orders in 2013-522, In

the Interest of Dome, a Child. MS. VILLARREAL: That's been passed. THE COURT: That's been passed. Did they not tell you that? UNIDENTIFIED SPEAKER: No. THE COURT: Who's your attorney? UNIDENTIFIED SPEAKER: Tracy Wright-Reneau. THE COURT: Okay. Give her a call. But they've

called my office and said that they don't want the hearing, so you're excused.

UNIDENTIFIED SPEAKER: Thank you. THE COURT: Give her a call before you get too

far away in case there's some misunderstanding, but it's been passed by agreement.

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UNIDENTIFIED SPEAKER: Thank you, Your Honor. THE COURT: Thank you. Okay. I'm looking for attorneys in the Dove

matter and I've got one short Motion for Continuance I'll take up here in a moment.

Let me go ahead and call the criminal docket. If I call your name as the defendant, I need you to stand so we know that you're here. I need defense counsel to let me know whether you are obviously here, whether you're ready or conferring. And I'm going to assume the State is ready unless they announce otherwise.

I'll start with three punishment hearings. 2013-227, Gilbert Lopez. THE DEFENDANT: Here. MS. VILLARREAL: The attorney called. He will

be late. THE COURT: Your attorney has called. He will be here shortly. Do not leave without permission of the Court.

2013-282, Camille Sauls. THE DEFENDANT: Present. My lawyer is running

late. THE COURT: Okay. Give Mr. Dwyer a call, but he's told the client -- his client he's running late. It shouldn't be a problem.

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And 2013-446, Jenesha Martinez. MS. JONES: She's in custody, Judge. We're

ready. THE COURT: Thank you. If you announce ready, especially on a custody

case, stay close. I'm going to come back and pick those up before the first break.

2011 -- Motions to Adjudicates and Motions to Revoke. 2011-031, Carl Stahmann. THE DEFENDANT: Here. THE COURT: Do you have an attorney,

Mr. Stahmann? THE DEFENDANT: Yes, sir. THE COURT: Who's that? THE DEFENDANT: Joseph Strickland. THE COURT: First name? THE DEFENDANT: Joseph. THE COURT: And is he out of San Antonio? THE DEFENDANT: Yes, sir. THE COURT: Do you have a phone number for him

in case he doesn't show up here shortly? THE DEFENDANT: I do, but I just talked to him. It's (210)447-2600. THE COURT: Give his office a call and confirm that.

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Marked as a contested hearing: 04-315, Benito Martinez. MR. CANTRELL: Judge, he's present and we are ready. I just want to let the Court know I have a trial that's supposed to begin at 1:30 today.

THE COURT: Approach. (Mr. McCrary and Mr. Cantrell approach.) THE COURT: Estimates of time? Well, first of

all let me ask this. Are we proving up both -- MR. CANTRELL: We're going to plead true, Your Honor. THE COURT: You're going to plead true. MR. CANTRELL: It's an issue of just punishment. MR. MCCRARY: I have three witnesses subpoenaed.

I may not need to call all of them. THE COURT: How many have you got? MR. CANTRELL: Just my client. THE COURT: Okay. 1:30? MR. CANTRELL: My trial starts at 1:30. THE COURT: Where? MR. CANTRELL: In County Court 13 in Bexar

County. THE COURT: Okay. I will -- MR. McCRARY: My witnesses are supposed to be

here at 10:30. It won't take long, though.

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THE COURT: Okay. We'll try to get it started as close to 10:30 as possible. MR. CANTRELL: Thank you, Judge. THE COURT: Thank you. 2011-631, Brian Wilson. MS. MENDEZ: Judge, the defendant is in custody,

Your Honor. And I would like a reset. THE COURT: Have you talked to the D.A.'s office yet? MS. MENDEZ: I spoke to them previously, but I have not since the last time we came to court. THE COURT: Approach. (Mr. McCrary and Ms. Mendez approach.) THE COURT: Is this a state jail punishment? MR. McCRARY: Yes, sir, it is. THE COURT: Been in jail for 50 days. Why do we

need more time? MS. MENDEZ: We're asking for medical records and I'm still waiting for them to be submitted. Nix Health Care let me know that the records from them would be here this week. But as far as Methodist Health Care, they still expect ten days before I receive them.

MR. McCRARY: I guess what I need to know is if he's going to accept my plea offer or not. MS. MENDEZ: He has rejected the plea offer.

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He's made that clear to me. MR. McCRARY: Then we need to reset it for contested hearing is what needs to happen. THE COURT: Okay. MR. MCCRARY: I conveyed a plea offer at the

last setting and it was reset to let him decide. This is the first I've heard he's rejected it. But either he's going to plead and go to state jail peacefully or it's going to be a fight.

THE COURT: When do you anticipate those medical records? MS. MENDEZ: Methodist Hospital is the last hospital I heard from and they said that they expect it will be at least another 10 to 15 days before I even receive the records.

THE COURT: Reset for a contested hearing in approximately 30 days on my docket. What -- what date is that? It would be the end of March.

THE CLERK: The 24th. THE COURT: The 24th of March for a contested.

Bring your witnesses. Is he contesting the truth of the matter or just the punishment? MS. MENDEZ: The punishment. THE COURT: Talk to him. Let's see if we can

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get him out here to plead true to the allegations to shorten that hearing and let everybody know who they need to bring.

MS. MENDEZ: Okay. THE COURT: Okay? MS. MENDEZ: Thank you. THE COURT: So I will mark you conferring at

this point. If he's willing to plead true to the allegations, let me know: We will bring him out, he'll plead true, and we'll set a contested punishment hearing.

MS. MENDEZ: Yes, Your Honor. THE COURT: Thank you. MS. MENDEZ: Thank you. THE COURT: 2013-300, Brenden Weir. MR. MILLAN: Your Honor, he's in custody. We

would ask to have that moved to a contested docket. He's also the next one, Your Honor, 13-301.

THE COURT: Is he going to -- approach. MR. MILLAN: Not today, Your Honor. THE COURT: You're not going to approach today? MR. MILLAN: Oh, I'm sorry. THE COURT: Want to bet? (Laughter and Mr. McCrary and Mr. Millan approach.) THE COURT: Is he going to plead true to the

allegations or are we contesting everything?

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MR. MILLAN: I'm pretty sure he's going to be pleading true to some of the allegations at least. THE COURT: Do you want to try to do that today so we can shorten the hearing and lessen the costs on the State to bring in all of their witnesses on the allegations?

MR. MILLAN: My problem is I have witnesses that I want to bring in that aren't available today. THE COURT: But is that for punishment or for the truth of the allegations? MR. MILLAN: For punishment. THE COURT: We can reset for a contested

punishment. My question is: Is he willing to plead true to the allegations today so we know what we're contesting?

MR. MILLAN: Judge, I would ask that we move everything if we can. Because I mean I'm trying to get people in here regarding -- I understand what you're saying if you can save some of the time. I've got three cases set in Guadalupe County this morning, also. So I wanted to see if can get this reset.

THE COURT: Okay. MR. MILLAN: I think next time I do want to

contest -- at a minimum contest the punishment the next time. But I'm --

THE COURT: Let's set it for two weeks not contested and then let's see what allegations he's willing to

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plead true to. I mean that can be a difference of an hour, hour and a half in my court.

MR. MILLAN: I understand. THE COURT: So I'll give you -- it's a second

degree felony. We will reset it in two weeks. It will not be contested. The primary issue then is whether you're going to plead him true or not.

MR. MILLAN: Right. THE COURT: If he's not, then be prepared to go

again fairly quickly in two weeks -- MR. MILLAN: I understand, Judge. THE COURT: -- if the State or you can be ready

to do that. MR. MILLAN: I understand, Judge. And I did want to speak about something with you

off of the docket at some point this morning, if possible. THE COURT: Well, why don't you go talk to your client about truth and stuff and then -- MR. MILLAN: No. No. It's about something else. That's why I tried to see you this morning. THE COURT: Can we do it right now off the record or do you have to do it in -- MR. MILLAN: Yes. THE COURT: -- Chambers? Oh, okay. Let's go off the record.

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(Discussion off the record.) THE COURT: So we will reset Weir for two weeks.

Uncontested. 2013-301, the same thing. Reset two weeks, uncontested. Plea docket. These three matters need to -- or actually it's one matter that needs to be resolved today or it goes to the jury docket.

2013-346, 347, 348, Abelardo Rodriguez, Jr. MR. MILLAN: Your Honor, I'm going to speak to

my client. I'm pretty sure that's going to go to the trial docket, but I'm going to try one last effort to try to come to a resolution.

THE COURT: I'll mark you as conferring. Thank you. 2012 -- pretrial docket. I'm talking mostly to defense counsel here. If you want to go to the plea docket, which is the last non-jury setting before going to the jury docket, just let me know and it will happen. If you want to go to the jury docket, let me know and it will happen.

If you want to stay on the pretrial docket, you're going to need to approach, even if the D.A. is in agreement, and let me know why the case is not moving forward.

2012-181, Kirk Slaughter. MR. FANUCCHI: Good morning, Judge. He's

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present. Would you put us on the plea docket? THE COURT: To the plea docket on 2012-181. Thank you. 2013-216, Felix Castilleja. MR. RODRIGUEZ: Present, Judge. We'll confer. THE COURT: Thank you. In custody. 2013-349, Gerald Robinson. It says "Motion." I

don't know. It's stuck in the middle of my pretrials. What are we doing here? MR. RODRIGUEZ: The defendant is in custody.

It's a motion to sever counts. THE COURT: Okay. Have you talked to the D.A.'s office about it? MR. RODRIGUEZ: I haven't had a chance this morning yet. THE COURT: Okay. Confer. I will mark you as conferring and then we'll see what we need to do. How are we standing, otherwise? Is it ready to go to the jury docket? MR. RODRIGUEZ: Otherwise on the 17th, Your Honor, yes. THE COURT: Oh, it's -- MR. McCRARY: We're already on a jury docket. THE COURT: And the 17th is my docket? MR. McCRARY: Yes, sir.

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THE COURT: Okay. Good. Thank you. 2013-358, John Paul Moreno. THE DEFENDANT: Present. THE COURT: And Chelkowski? Ms. Chelkowski? Give her a call and prepare me a show cause if

you can't get ahold of her. Mr. Moreno, do not leave until you're excused by the Court. 2013-402, Wally Gracia. MR. HUDSON: He's in custody, Your Honor. We

will confer. We'd like to go to the plea docket, if possible. THE COURT: Which one, conferring or move it to plea docket? MR. HUDSON: If we could move it to the plea docket. THE COURT: To the plea docket. Thank you. Obviously if you get something resolved today, let me know and we'll take it up.

2013-409, Carl Stahmann? THE DEFENDANT: Here. THE COURT: Okay. MR. MCCRARY: That's the same guy that was on

Page 1, Your Honor, earlier. THE COURT: Yeah. I'm looking at that. You've got Andrew Del Cueto as your attorney on

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this case? THE DEFENDANT: I don't believe so. I believe it's Joseph Strickland. THE COURT: Can I see that file, please? THE CLERK: We were looking at that. THE COURT: We've got a notice of -- why don't

you approach, please, sir. (Mr. Stahmann approaches.) THE COURT: We've got a Notice of Appearance of

retained counsel of Andrew del Cueto, C-U-E-T-O. And you're telling me he's not your attorney?

THE DEFENDANT: It's the same office, possibly. Because he -- I haven't had a chance to talk to him yet. I can get all of this straightened out as soon as my attorney gets here. They office in the Offices of Nicholas Lahood and del Cueto.

THE COURT: Well, give them a call and find out what's going on and get somebody here today or prepare me a show cause for Mr. del Cueto. And get me a notice -- well, get somebody here or I will have to order Mr. Stahmann to retain counsel in the other case. But make some phone calls.

Don't leave. We will work on it. Thank you. THE DEFENDANT: Okay. Thank you. MR. McCRARY: Did he make bond on that

revocation?

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THE CLERK: Yes, he bonded out. THE COURT: Was it a regular bond or was it an

attorney bond? MR. McCRARY: Just curious what it was set at. THE CLERK: Yeah, it's through a bail bonds. MR. MCCRARY: How much is it? THE CLERK: $110,000. One is $100,000 and one

is $10,000. THE COURT: 2013-435, Denis Chavez. MR. CAMPOS: May I approach? THE COURT: You may. I'm not seeing your client stand. Is he here? MR. CAMPOS: No, Judge. THE COURT: Is that why you're approaching? MR. CAMPOS: Yes. THE COURT: Okay. MR. CAMPOS: My client lives in Florida. He's

had a very serious medical procedure. He has not been released to travel. I provided medicals to the State.

MS. KELLY: That's correct, Your Honor. THE COURT: How long do you need to get him

here? MR. CAMPOS: Judge, he's going to move back to Texas in mid April, so I'd like a setting after April 15th. THE COURT: Is that -- excuse me. Is that

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acceptable to the State? MS. KELLY: Yes, Your Honor. THE COURT: After April 15th? MR. CAMPOS: Yes, sir. THE COURT: The first setting after April 15th

for pretrial on 2013-435. MR. CAMPOS: May I be excused? THE COURT: You may. Thank you. 2013-575, Jessica Lindig. MS. ANCIRA: Your Honor, I got a phone call from

my client this morning saying that she didn't have transportation to court.

THE COURT: Call her name three times, issue a warrant, forfeit her bond, and get her transportation. THE BAILIFF: Yes, Your Honor. MS. ANCIRA: May I be excused? THE COURT: You may. You might want to let her

know that we've issued a warrant for her arrest. That may help her find transportation.

MS. ANCIRA: I told her to expect that. THE COURT: Okay. MS. ANCIRA: But I will call her and let her

know. THE COURT: This is the arraignment docket. At the very least, defense counsel, I need to arraign your

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clients or get a waiver of arraignment. Once we've done that and you've said hello to the D.A.'s office, then we will reset the matter for pretrial. I need to make sure everybody has counsel on the arraignment docket.

2013-366, Chelsie Chenoweth. THE DEFENDANT: Here. THE COURT: I've got Christopher Graham as your

counsel? THE DEFENDANT: Yeah. I haven't heard from him. MS. VILLARREAL: I haven't heard from him,

either. THE COURT: Give him a call and prepare a show cause. Was he retained or appointed, ma'am? THE DEFENDANT: He's court appointed. THE COURT: Okay. Go ahead and issue a show

cause if you can't get ahold of him or if he tells us he can't get here. And make a note to remove him off of my court-appointed --

MS. VILLARREAL: I think we did that. THE COURT: Okay. Well, make a note for me to

double-check that. MS. VILLARREAL: Okay. MR. McCRARY: I think Steve did so. THE COURT: I'm sorry?

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MR. McCRARY: He did so. THE COURT: Oh, he's already been removed? MR. McCRARY: That's what I was told. THE COURT: Okay. Well, now he will look at a

show cause. 2014-16, Rick Anthony Cruz. MS. WIGINGTON: He's in custody, Your Honor, and

I'm conferring with the D.A.'s office. Because of the length of time he's been in custody, I'm hoping that we can resolve something today. If not, we'll advance it very quickly.

THE COURT: Is he -- it says "state jail." Is it a state jail punishment or is it an enhanced? MS. WIGINGTON: It's enhanced. MR. MCCRARY: It's enhanced. THE COURT: Oh, okay. I'll mark you as

conferring. At the very least, Ms. Wigington, get me a waiver of arraignment. And as you said, if can we go ahead and get it to the jury docket as soon as you've had time to prepare, we will do that.

MS. WIGINGTON: Yes, Your Honor. THE COURT: It's two cases. Also 2014-17. 2014-19, Bradley Whitten. MR. SCHARMEN: Present with counsel, Judge.

We'll waive arraignment. We may have already filed a waiver. I don't know.

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THE CLERK: No, it's not. MR. SCHARMEN: Yeah, Judge. We're going to

waive arraignment. THE COURT: Is your client here? MR. SCHARMEN: He's here. THE COURT: Okay. Get me -- do we have a form

for -- THE CLERK: Yes, sir. THE COURT: Get me a waiver of arraignment; say

hello to the D.A.'s office; get whatever they've got for you, maybe including an offer; and we will reset it for pretrial. If there's anything that the Court can do on your case today, let me know. Otherwise, I will not call it again subject to your --

MR. SCHARMEN: That's all we can do today, Your Honor. THE COURT: Subject to the waiver of arraignment, it will be reset for pretrial. 2014-27, Felix Castilleja. MR. RODRIGUEZ: May we approach, Judge? THE COURT: You may. (Ms. Rankin and Mr. Rodriguez approach.) MR. RODRIGUEZ: Good morning, Judge. THE COURT: Are you retained or appointed? MR. RODRIGUEZ: I'm appointed.

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THE COURT: In both cases already? MR. RODRIGUEZ: Yes. This is one of those where

we were waiting on the trial docket and my client didn't appear. I was wondering if the State is going to subpoena me or my office about whether I gave him notice and that kind of thing. I know that has happened to my colleagues.

THE COURT: Yeah, it has happened out of this office that we have to do a conflict and get a separate attorney.

Is that the intent of the State? MS. RANKIN: If we could confer. If he does not

accept an offer today, then that would be a conflict, yes. THE COURT: Okay. MR. RODRIGUEZ: We can do that, Judge. THE COURT: Then we will just mark you as

conferring for the short term and I will call it again. So don't leave until it's been reset by the Court.

MR. McCRARY: Kind of the deal with that from an office standpoint is if we can work something out, we -- I've pled cases like this before. But if it's going to be where we're going to end up fighting, then yes he'll be a witness.

THE COURT: Okay. We should be able to resolve that hopefully today. MR. RODRIGUEZ: Okay. Thank you, Judge. THE COURT: Thank you.

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2014-39, Elizabeth Hernandez-Magana -- or "Magana." How do you say that? THE DEFENDANT: "Magana." THE COURT: "Magana." Thank you. Do you have an attorney, Ms. Magana? THE DEFENDANT: No, sir, I don't. THE COURT: When do you anticipate getting one? THE DEFENDANT: I was working on that, Judge. THE COURT: I'm sorry. Why don't you go ahead

and approach. I can't understand you. Old man's hearing. (Ms. Magana approaches.) THE DEFENDANT: I was working on that. I don't

have a lawyer. THE COURT: Are you going to be able to get one in a reasonable time? THE DEFENDANT: I was -- yeah. I was, you know, in the process of getting a lawyer. It's just the money issue. But other than that, it's coming together. So --

THE COURT: If I were to give you 30 days, would you have an attorney? THE DEFENDANT: Oh, yeah, yeah, yeah. That will be good. THE COURT: Okay. What I'm going to do is my clerk is going to prepare an order for you to retain counsel. Read it carefully before you sign it. If you show up without

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counsel and can't, under oath, explain all of the good-faith efforts you've made to get counsel, you can be held in contempt of court: up to 180 days in jail and a $500 fine.

If you don't show up on the date that's on that -- and this will be the only notice you will receive, so give it to the -- give a copy of it to the attorney you hire.

If you don't show up, it could be a third-degree felony for failure to appear. THE DEFENDANT: Okay. THE COURT: Do you understand that? THE DEFENDANT: Yes, sir, I do. THE COURT: If you'll step over to the side and

read it carefully after you sign it. After you've signed it, take a copy with you.

THE DEFENDANT: (Complies.) THE COURT: Order to employ in 2013-377, Cynthia

Dawn Hart. THE DEFENDANT: I still haven't been able to get one. THE COURT: If you will approach. May I see that file, please? THE CLERK: (Complies.) (Ms. Hart approaches.) THE COURT: Okay. Have you retained counsel? THE DEFENDANT: Not yet, sir. I'm still trying

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to come up with the funds to hire an attorney. MS. KELLY: Your Honor, previously she had Ms. Gillingham. Ms. Gillingham got her admitted to drug court. She decided she didn't want to go to drug court and Ms. Gillingham withdrew as counsel. And she was admonished on the 2nd of January that she must have an attorney by today.

THE DEFENDANT: On the 2nd of January? THE COURT: Yeah. That's when you were in front

of Judge Robison and you signed your order to employ. THE DEFENDANT: I never -- okay. I never went in front of Judge Robison. I -- I was given some forms by my attorney and I signed them and then they sent me a notice that we had court. And I went to court and they -- it was postponed and I wasn't given a new date.

THE COURT: How much time do you need to get counsel? THE DEFENDANT: Can I have another 30 days, Your Honor? THE COURT: That's a long time. THE DEFENDANT: Yes, sir. THE COURT: Can you do it in two weeks? THE DEFENDANT: I can try, yes, sir. THE COURT: You need to get counsel. THE DEFENDANT: Yes, sir, I know. I will do my

best to do it within two weeks.

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MR. McCRARY: Considering the whole situation, it might be a good idea to have her urine tested. THE COURT: Would you pass a UA if I give it to you? THE DEFENDANT: Yes, sir. THE COURT: I'm sorry? THE DEFENDANT: Yes, sir. THE COURT: Here's what I'm going to do. I'm

going to give you 30 days to get counsel. No more excuses. I will ask probation to take her down and get a UA. If she passes a UA, then we will reset this matter. You come back in here and we will sign that when you get back. If you don't pass a UA, then I will probably put you in jail and we'll get a court-appointed attorney.

THE DEFENDANT: Yes, sir. THE COURT: Okay. Don't lie to me. Are you

going to pass a UA? THE DEFENDANT: Yes, sir. THE COURT: Okay. Give her a UA. If he gets

the UA, I will give her 30 days to get counsel. If she doesn't pass the UA, then we will put her in jail. And obviously she can't make anymore money and I'll have her fill out a court-appointed application. Thank you.

2013-614, Marilyn May Bray. THE DEFENDANT: Here, sir.

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THE COURT: Have you got an attorney, Ms. Bray? THE DEFENDANT: No, sir. I was not able to

obtain counsel. I would like to get a court-appointed attorney.

THE COURT: Approach. Let me see that file. THE CLERK: (Complies.) (Ms. Bray approaches.) THE COURT: You apparently made representations

back on the 14th of January that you could employ counsel. I know I told you -- because my signature is on this and I always do -- that you're going to have to explain to me under oath all for the good-faith efforts. So if you will raise your right hand.

(Defendant sworn.) THE COURT: Tell me everything that you've done

to get counsel. THE DEFENDANT: Yes, sir. I did go and speak with an attorney. And I was planning to make -- he said it would be $500 to get him started on it. And I had like a family emergency and my new position -- I got a new job and I started that last week. And I just couldn't come up with the $500 to get us going. I apologize. And --

THE COURT: But you've got a new job now? THE DEFENDANT: Yes, sir, I do. I do and I love

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it. It's great. THE COURT: So if I gave you 30 more days, you could come up with it? THE DEFENDANT: Yes, sir. THE COURT: What people don't understand on

court-appointed attorney's is you have to pay them anyway. It's part of the judgment at the end.

THE DEFENDANT: I will do that. I mean I -- I do apologize. THE COURT: I would rather you pick one you like. And quit apologizing. We're just in court here. THE DEFENDANT: Okay. THE COURT: We're going to find out what's going

on and we're going to do what's just and fair. Can you pass a UA if I gave one to you today? THE DEFENDANT: Sure. THE COURT: No meth since this case has been

pending? THE DEFENDANT: Oh, no, sir. Absolutely not. I never did that in the first place. It was an empty baggie. I don't even know how it got --

THE COURT: Shush. THE DEFENDANT: Okay. I'm sorry. THE COURT: Don't talk about your case. THE DEFENDANT: I'm sorry. I'm sorry.

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THE COURT: Don't talk about your case. THE DEFENDANT: No, everything is fine, sir. I

just need counsel. That's all I need. THE COURT: Reset. Order to retain, 30 days. Read it carefully before you sign it. If you come in again without counsel, you're going to have to come up here and tell me again why your new job isn't paying you or whatever that is. You've told me all you need is $500. You've got 30 days, which should be two paychecks. You should be able to come up with $500 to retain your own counsel.

THE DEFENDANT: Yes, Your Honor. THE COURT: Step over to the side. Make sure

you take a copy with you after you've read it and signed it. THE DEFENDANT: Yes, sir. THE COURT: Motion to Substitute: 2012-486,

Humberto Ibarra. May I see that file, please. 2012-486. THE CLERK: (Complies.) THE COURT: Is your client here? MR. ACEVEDO: No, Your Honor. THE COURT: Did you tell him to be here? MR. ACEVEDO: I just called him, Your Honor, and

apparently he was told that he had a setting like in March: March 17th and March 11th. He's on full house arrest, Your Honor. And what I'm thinking, Your Honor, is that they

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didn't -- since the order wasn't granted or the lawyer didn't follow up on it, he didn't get notice of this hearing. And so I tried to call his office right now and there's no answer.

THE COURT: So new counsel isn't here, either? MR. ACEVEDO: No, Your Honor. THE COURT: Here's what I will do in this case

unless the State has any objections. I'm going to grant the Motion to Substitute. It's signed by Mr. Vela. And I'll reset this matter in two weeks. So we'll get notice out.

I'm going to ask you, as an officer of the Court, to call Mr. Vela and tell him he's got a setting coming in approximately two weeks.

MR. ACEVEDO: Yes, Your Honor. THE COURT: If he hadn't -- he needs to call up

here and find out when that's -- well, let's just set it on my docket.

What day is my next docket? THE CLERK: March 13th. THE COURT: It's going to be reset on the 13th.

Mr. Vela needs to be here or there will be a show cause order issued.

MR. ACEVEDO: March 13th, Your Honor? THE COURT: March 13th. MR. McCRARY: Where is the defendant at right

now?

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MR. ACEVEDO: He's in Bexar County at home. He's got full house arrest. He's got full house arrest here, Your Honor, and he has full house arrest in Bexar County.

THE COURT: Let's get Mr. Vela here in two weeks. Let him know it's coming on the 13th. We will send notice. There will be no excuses. I expect his client to be here or a really good explanation on why he's not. Okay?

MR. ACEVEDO: Your Honor, is it on the March 11th docket? Because he said he got something in the mail.

THE COURT: Is it already on the March 11th docket? THE CLERK: March 17th. MR. ACEVEDO: March 17th. THE CLERK: It's for a jury trial. THE COURT: Well, that pretrial is on the 13th

so he has to be here either way. Make sure Mr. Vela knows that. Send new notice to Mr. Vela for both jury and pretrial and circle it like you do and highlight. Call him and tell him if he's not here on that Thursday, I will issue a show cause.

MR. ACEVEDO: Thank you, Judge. MR. McCRARY: Does he know he's substituting in

on a case that's set for trial? MR. ACEVEDO: Yes.

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MR. McCRARY: He's not going to try to weasel out of trial based on substituting in at the last minute? THE COURT: Y'all can have that discussion. I've granted the motion. Let me see the docket

sheet. THE CLERK: (Complies.) THE COURT: And a writ in 2012-559, Carolyn

Carnes. MR. RODRIGUEZ: We will confer on that. THE COURT: Thank you. Is that, what, a 90-day

writ or a bond writ or what? MR. RODRIGUEZ: It's -- MR. McCRARY: It's none of the above. MR. RODRIGUEZ: It's a 90-day writ subsequent to

bond conditions previously. THE COURT: So it's a bond conditions writ? I just always like to know what they are. MR. McCRARY: She violated the conditions of bond. THE COURT: Oh, okay. Okay. Anybody here whose name I did not call or

came in late? THE BAILIFF: Mr. Graham is here, Your Honor. THE COURT: Mr. who? MR. GRAHAM: Chelsie Chenoweth. It was a case

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that was supposed to be set a week or two ago but, for whatever reason, it wasn't on the list and so now I'm back on it.

THE COURT: For arraignment. I need you to say hello to the D.A.'s office. If there's nothing we can do today, then get me a waiver of arraignment or bring your client up and let me arraign her.

MR. GRAHAM: Sounds good. THE COURT: And it will be reset for pretrial

subject to that waiver of arraignment. ATTORNEY ATTORNEY: Sounds good. Thank you very much, Your Honor. THE COURT: We have a form for that if you're not carrying one with you. MR. MCCRARY: May we approach? MR. MILLAN: Your Honor, on Abelardo Rodriguez,

we want to move him to the trial docket. THE COURT: 2013-346, 347 and 348 to the trial docket. MR. MILLAN: Your Honor, I have no further business before this Court. May I be excused? THE COURT: You may. Thank you. I'm looking for Mr. Darwin, Mr. Dwyer,

Mr. Strickland, Ms. Chelkowski, del Cueto, Ms. Jessica Marie Lindig.

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None of those people are here, so I will proceed with the punishment in 2013-446, Jenesha Martinez. MR. MCCRARY: On the Brian Wilson case, she actually came back and told me he's going to plea on it. THE COURT: Brian Wilson. MR. MCCRARY: You marked it off. It was one of

the ones on Page 2. THE COURT: Oh, going to come back and plead true to the allegations? MR. MCCRARY: I think he's going to plead and take the deal. THE COURT: Oh, okay. (Discussion off the record.) (Open Court, Defendant present.) THE COURT: Okay. Ms. Martinez has pled guilty:

two years in a state jail facility, probated for four years; $1,500 fine; $140 in restitution; 12.45 two cases -- two misdemeanor cases; court costs due at the time of sentencing, but you've been in jail so we will take care of that as soon as you can; standard stuff; DWI school.

MS. JONES: Actually it's drug education, Judge. THE COURT: I'm sorry. Drug -- it's DWI

school/drug school, a women's support group. I'm going to approve the plea, but I've got two comments. Number one is you have to get a job. If you don't

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get a job, you're going to be back in here and then back in the state jail facility.

And then my second comment is to the probation department. I want you to get her some help on getting child support from the father of her children.

PROBATION: Okay. THE COURT: It says two children. You have two

or one child? THE DEFENDANT: One. MS. JONES: She has one and she's pregnant. THE COURT: Okay. It's both children. And

that's going to be a condition of probation is that you actively seek child support from the fathers of these children. If you fail to do that and give them a pass, you go to jail. Do you understand?

THE DEFENDANT: Yes, sir. THE COURT: My staff is very good at getting the

attorney general's attention on these kind of the cases. So I find you guilty and sentence you to two years in a state jail facility, probated for four years; $1,500 fine; $140 in restitution; court costs; Crime Stopper's fee to be paid as soon as she can, accelerated; 200 hours of community service restitution; and follow all of the recommendations in the PSI.

MS. JONES: And Judge, she's a resident of

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Temple and I've explained to her -- and I believe the probation department is intending to transfer this up. I told her that she needs to stay in touch with our department on a weekly basis to make sure that that is accepted so it doesn't get lost in transit.

THE COURT: The first thing is -- does she have any other holds on her? MS. JONES: No, sir. THE COURT: As soon as you get out of jail, the

first place you go is to my probation department. THE DEFENDANT: Yes, sir. THE COURT: And they will explain all of that to

you on how to report until it gets transferred and everything that goes along there.

THE DEFENDANT: Yes, sir. THE COURT: But I think what's important is

regardless of what they do in Temple if my people find out you don't have a job, if my people find out you're not seeking child support, then my people will bring you back here and you will end up in my jail until we decide how to deal with you.

Do you understand that? THE DEFENDANT: Yes, sir. THE COURT: You're under my thumb. It's not

Temple's. It's mine. And we're a lot harsher than they are in Temple, Texas.

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THE DEFENDANT: Yes, sir. THE COURT: Okay. Thank you. MS. JONES: Thanks, Judge. THE COURT: Thank you. MS. JONES: May I be excused? THE COURT: You may. The waiver of arraignment in 2014-19, Bradley

Whitten, is approved. Reset for pretrial. MR. SCHARMEN: Are we excused, Judge? THE COURT: Yes. Thank you. MR. SCHARMEN: Thank you, Judge. THE COURT: Any announcements? MS. BASCON: Your Honor, on the civil matter,

2013-1144, we've reached an agreement. THE COURT: Yeah. You may approach. (Ms. Bascon and Mr. Fahle approach.) THE COURT: Okay. What is the agreement? MR. FAHLE: Your Honor, we -- THE COURT: I assume you want to dictate it into

the record. MR. FAHLE: Yes, sir. MS. BASCON: I think that's a good idea. THE COURT: Okay. MR. FAHLE: We have agreed to reset the

Plaintiff's Motion for Summary Judgment for April 24th, 2014

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at 9:00 a.m. THE COURT: Is that my docket? MS. BASCON: Yes, sir. MR. FAHLE: Yes, sir, Your Honor. The Defendants agree to file and serve their

Response to Motion for Summary Judgment by April 24th, 2014 with receipt of the response to Plaintiff's counsel on the 14th. And we've agreed that we will do that by fax and by electronic filing. That way they will have double notice.

THE COURT: Okay. MR. FAHLE: Plaintiffs further agree that

Plaintiffs -- the parties further agree that Plaintiffs are not required to answer outstanding discovery for Plaintiff within 30 days (sic).

MS. BASCON: "Until." MR. FAHLE: Until 30 days following a ruling by

the Court on the Motion for Summary Judgment should the Court deny the Motion for Summary Judgment.

MS. BASCON: And that discovery is the outstanding Request for Production and Request for Disclosure and Interrogatories to all of the Plaintiffs.

THE COURT: Okay. MR. FAHLE: And that agreement -- that paragraph

does not address the Defendants' Request for Abstract. MS. BASCON: And I will separately respond to

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that within a timely matter. THE COURT: And that's the agreement of both parties? MS. BASCON: Yes, Your Honor. THE COURT: Are you going to put it in writing

or are you going to rely on dictating it into the record. MR. FAHLE: We've got it in writing, Your Honor. And we will sign this as a Rule 11 Agreement. And there is one other. Defendants agree to provide Plaintiffs' counsel contact information they have for Arthur Cronenberg (phonetic) who is a potential witness in this case by -- can we have one second, Your Honor?

THE COURT: You may. (Sotto voce discussion between attorneys.) MR. FAHLE: By March 6th, Your Honor. THE COURT: Okay. MR. FAHLE: And one last thing. And we have not

discussed this, but let me just clarify. This says "Should the Court deny the Motion for Summary Judgment, then they will -- then they will provide discovery." Even if the Court grants the Motion for Summary Judgment, we contend that that is not dispositive of the entire case. This is actually a Motion for Partial Summary Judgment.

MS. BASCON: I would agree that there would still be an issue as to how much money I would be entitled to.

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(Laughter.) MS. BASCON: If he grants the Motion for Summary

Judgment, I don't see the purpose of needing to answer the discovery. That was our agreement.

MR. FAHLE: Well, what I'm -- what I'm saying is if -- if he grants the Motion for Summary Judgment but that doesn't dispose of all of the issues in the case --

THE COURT: Are you still reserving the right to object to that discovery within 30 days? MS. BASCON: I filed objections already, Your Honor. THE COURT: Well, then we can -- if she doesn't provide it in 30 days, we can set it for a hearing to see whether it's necessary or not.

MS. BASCON: Okay. MR. FAHLE: Thank you, Your Honor. THE COURT: Okay. MS. BASCON: Sure. THE COURT: And that will be part of the Rule

11. And I don't mean to dictate terms. Are y'all in agreement with that?

MS. BASCON: That's fine. MR. FAHLE: Yes, Your Honor. THE COURT: Okay. Then that is the Rule 11.

It's approved by the Court. You've represented you're going

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to put it in writing. You may do so. But the record is the record. And make sure you've talked to Savanah to get on my April 24th docket.

MS. BASCON: We have done that already. THE COURT: Okay. Thank you. MS. BASCON: Thanks, Your Honor. May we be

excused? THE COURT: You may. MR. FAHLE: Thank you, Your Honor. THE COURT: Okay. Any announcements? Anybody

that came in late? There being none, we will take a short break. We will contact those attorneys that I had said we were going to contact.

And I will ask my staff or bailiffs to let me know if we have anything ready and we'll come out and do it all again.

THE BAILIFF: Yes, Your Honor. THE COURT: Short recess. (Recess.) THE COURT: Okay. A little housekeeping. Off

of my civil docket, the only matter was the Dove matter. And they did call with an agreed pass, so the civil docket is complete.

Criminal docket. Let me just run through and see what we've got.

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Mr. Darwin here yet? THE BAILIFF: No, Your Honor. THE COURT: Mr. Dwyer here yet? MR. DWYER: I'm here, Your Honor. We're ready. THE COURT: Thank you. Mr. Strickland here yet? MR. DEL CUETO: I'm here for Mr. Strickland.

I'm Andrew del Cueto, Your Honor. THE COURT: If you will approach. (Mr. del Cueto approaches.) THE COURT: It's my understanding that you

represent Mr. Stahmann in the underlying offense. MR. DEL CUETO: Yes, Your Honor. I believe my office will be faxing a motion of retained counsel for the MTR as well.

THE COURT: Well, can you not just hand write something that says you will be representing him on that so we'll --

MR. DEL CUETO: Sure, Judge. If I get a piece of paper I sure can. THE COURT: Are you going to do anything on these cases today? MR. DEL CUETO: I can't, Judge. This is the first day I got the police reports and I believe there's a DVD or video.

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THE COURT: What I'm going to do is subject to your appearance today, I will reset 2011-31, the motion to adjudicate, and 2013-409 to the -- that will be on the pretrial docket. It will be on my docket because of the motion to adjudicate.

Get me an appearance of counsel, handwritten, with bar number, phone number, et cetera, so we can get you into the computer and you will get resets on potential.

MR. DEL CUETO: Thank you, Your Honor. THE COURT: Thank you. MR. DEL CUETO: After that, may I be excused? THE COURT: You may. MR. DEL CUETO: Thank you, Judge. THE COURT: Martinez is ready; is that correct? MR. MCCRARY: Yes, sir. And that's the hearing. THE COURT: Wilson. Are we going to do anything

additional on Brian Wilson? MS. MENDEZ: Yes, Your Honor. My client has had a change of heart and I believe we will enter a plea. THE COURT: Okay. And do a recommended -- MR. MCCRARY: Yes, sir. MS. MENDEZ: Yes, sir. THE COURT: Is it ready? MR. McCRARY: Yes, sir. THE COURT: Okay. Thank you.

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Go ahead and bring out Brian Wilson. I will take that up first. Then Castilleja, Mr. Rodriguez. MR. RODRIGUEZ: Judge, we came to an agreement

on that matter, so it will be a plea today. THE COURT: Plea today. Is it paper ready yet? MR. RODRIGUEZ: Yes, sir. THE COURT: Thank you. And that's both cases

will be resolved one way or the other? MR. RODRIGUEZ: Yes, sir. THE COURT: Thank you. Robinson? MR. COLLINS: It's ready, Your Honor. THE COURT: Thank you. Did Ms. Chelkowski get here? MR. McCRARY: Yes, sir. I saw her. THE COURT: Okay. So she's conferring

somewhere? MR. McCRARY: I don't know where she went, but I talked to her. THE CLERK: Yes, sir. THE BAILIFF: She's in the back, Your Honor. THE COURT: Okay. That's with Mr. Moreno. And then Cruz, Ms. Wigington? MR. McCRARY: It's going to be a plea. She has

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the paperwork. I assume she's in the back talking to him. THE COURT: Thank you. Did Jessica Marie Lindig ever get here? THE BAILIFF: No, Your Honor. THE COURT: Has that name been called? THE BAILIFF: Yes, it has, Your Honor, at

10:13 a.m., three times. There was no response. THE COURT: Issue a warrant, forfeit the bond. And I will take judicial notice of your certification and announcement in open court.

It's my understanding that Ms. Hart failed her UA. Has she been given an application for court-appointed attorney?

THE CLERK: No, sir. THE COURT: Somebody give her an application for

court-appointed attorney. She's not going to be able to make any money under those circumstances. And I will look at that and get her counsel. We will reset that matter for pretrial after I have reviewed and appointed her counsel.

And last but not least is Carolyn Carnes. MR. RODRIGUEZ: Judge, I've conferred with the

State. We have agreed to reset that matter to March 13th, which I think is your next document.

THE COURT: Reset to March 13th. Thank you. Okay. Brian Wilson 201-1631.

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MR. McCRARY: You skipped one case in there somewhere. THE COURT: Oh, I did? What did I skip? MR. GRAHAM: Chenoweth, Your Honor. Chelsie

Chenoweth is a plea. The paperwork is ready on that one. THE COURT: Oh, I'm sorry. I did. I thought we were just going to do a waiver of arraignment. But it is ready and we're going to resolve that today?

MR. GRAHAM: That's correct, Your Honor. THE COURT: Thank you. Raise your right hand. (Defendant present and sworn.) THE COURT: Okay. And you are Brian Gerard

Wilson? THE DEFENDANT: Correct, sir. THE COURT: The first document we're going to go

over is the Trial Court Certification Regarding Defendant's Right to Appeal. Your signature on this document?

THE DEFENDANT: Correct, sir. THE COURT: And you have marked that you have

waived your right to appeal. You do understand in marking that that, first of all, if you plead true to any of the allegations in the State's motion and I punish you within the appropriate range of punishment, you will have waived your rights to appeal?

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THE DEFENDANT: Correct, sir. THE COURT: And you also understand that there

may be a recommendation from the State, but I'm not obligated to follow that recommendation. Do you understand that?

THE DEFENDANT: Yes, sir. THE COURT: Okay. I'm looking at a motion to

revoke, dated November 22nd. Is that the active motion? MS. MENDEZ: Yes. MR. McCRARY: November 22nd, 2013. Yes, sir,

Your Honor. THE COURT: Do you waive -- well, first of all I'm going to approve the Trial Court Certification Regarding Rights to Appeal. I would ask one thing.

May I write that you are currently, as your address, the Comal County jail? THE DEFENDANT: That's correct, sir. THE COURT: I will give your counsel and

counsel's copy to counsel. Generally speaking, you are currently on supervision for failure to comply, five years. That's a third degree felony; is that correct?

MR. McCRARY: State jail. THE COURT: State jail. So we've got up to two

years in a state jail and everything less than that. The allegations are, generally speaking, moved

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and failed to report to the San Antonio Police Department within the statutory time. You've apparently moved twice and didn't report. So the first four are reporting violations -- or registration violations?

THE DEFENDANT: Yes, sir. THE COURT: And then intentionally and knowingly

threatened Chancy Wilson with imminent bodily injury; and then failed to report to probation; change of residence and didn't give notice as required, two allegations of that; failure to pay; failure to pay; and failure to complete CSR hours.

How do you plead to the allegations in the State's motion, true or not true? THE DEFENDANT: Well, as I said before, I wouldn't refute the statement, sir. I can't -- THE REPORTER: I'm sorry. Repeat that. THE DEFENDANT: I said I wouldn't refute the

statements, sir. THE COURT: Are they true or not true? If you say false or not true, then we'll have a hearing and the State could prove them up. And then we can proceed at that point and obviously any recommendation --

THE DEFENDANT: No, sir. THE COURT: -- I'm sure will be off the table. THE DEFENDANT: No, sir. No, sir. No, sir.

No, sir.

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THE COURT: True or not true? THE DEFENDANT: All true, sir. THE COURT: Does the State have a recommendation

in exchange for the plea of true? MR. McCRARY: Basically that he get 18 months state jail and a $500 fine. THE COURT: Was that the original fine? MR. McCRARY: That's the original sentence,

quite honestly. I'm not making him any kind of deal other than it won't be stacked.

THE COURT: Okay. Then I do hereby revoke your probation and sentence you to 18 months in a state jail facility and give you credit for time served as allowed under the rules and laws of this state.

THE DEFENDANT: Yes, sir. THE COURT: Any and all unpaid fines, fees,

restitution, et cetera, will be remain due and owing. Good luck, sir. Thank you, Counsel. THE DEFENDANT: Remain due and owing, sir?

Remain -- I'm confused, sir. I don't want to be confused, sir.

THE COURT: When you originally were found guilty -- THE DEFENDANT: Yes, sir.

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THE COURT: -- there was a fine. THE DEFENDANT: Yes, sir. THE COURT: There was court costs. THE DEFENDANT: Yes, sir. THE COURT: There may have been restitution. THE DEFENDANT: Yes, sir. THE COURT: I don't know. THE DEFENDANT: Yes, sir. THE COURT: And if you haven't paid them -- THE DEFENDANT: Yes, sir. THE COURT: -- they will remain due and owing.

You've still got to pay them. THE DEFENDANT: Yes, sir. THE COURT: Okay. Thank you. THE DEFENDANT: Yes, sir. THE COURT: Next will be 2013-282, Camille

Sauls. The next custody case is Jerryl Robinson. If you will get him ready. (Defendant present.) THE COURT: Okay. Ms. Sauls, it's a four-year

deferred adjudication; a $1,000 fine; $140 restitution; 200 hours community service restitution.

Did you bring your court costs today? THE DEFENDANT: Yes, sir.

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THE COURT: Let's get those paid. The conditions of probation recommended are

fairly standard for this kind of offense, including intensive outpatient. Any further discussion?

Then we'll defer adjudication for four years. Pay your court costs. I'll assess $140 restitution, a $1,000 fine, 200 hours community service restitution, and follow the recommendations in the supervision plan as the conditions of probation.

Don't leave until you've been excused by the probation department. Thank you, counsel. MR. DWYER: Thank you. THE COURT: Now you can go back to campaigning. MR. DWYER: Yes, sir. MS. WIGINGTON: Your Honor, I wanted to let you

know we also have Rick Anthony Cruz that's going to be signing here and he will be ready. He's in custody as well.

THE COURT: Is it paper ready now? MS. WIGINGTON: I'm letting them have it to take

it to him to sign now. THE COURT: Thank you. I will mark it as ready under those circumstances. (Defendant present.) THE COURT: Mr. Robinson?

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THE DEFENDANT: Yes, sir. THE COURT: Okay. (Pause.) THE COURT: Okay. It's your motion, Counsel. I

have read it. Tell me why I should sever these counts. MR. COLLINS: Your Honor, what we have here is Mr. Robinson is charged under indictment in this case on two counts. Count 1 is theft greater than $15,000 (sic), less than $20,000.

THE COURT: It's $1,500. But go ahead. MR. COLLINS: $1,500 and less than $20,000,

which is a state jail enhanced to a second degree. Count Two he's charged with theft less than $1,500 with two or more prior theft convictions. That's enhanced as well, so it's a second degree. So both are second degrees.

What it is -- the issue we have here is count -- it's two value differences. What we're arguing is that Count 1 is greater than $1,500, less than $20,000; and Count 2 is less than $1,500. That's two separate charges.

THE COURT: On the same day with the same victim? MR. COLLINS: Same date. Same victim. MR. McCRARY: The same offense. MR. COLLINS: The same items, but two different

values are being charged. We've got a box of 36 cartons of

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cigarettes apparently it's -- supposedly it's greater than $1,500, less than $20,000; and at the same time it's less than $1,500. We have two counts. Two charges.

THE COURT: It's the same cigarettes? MR. McCRARY: The same cigarettes. THE COURT: Doesn't the State have to elect

which one -- what the value is? MR. McCRARY: No, sir, I don't. THE COURT: You can go -- MR. MCCRARY: I can charge in the alternative

and get him either way. MR. COLLINS: And again we go back to: If he's charged in the alternative, Judge, we're saying that there's two -- two counts are two separate offenses and that's why we're asking to sever under 3.04, Texas Penal Code.

MR. McCRARY: And therein lies the gravamen of this. And, quite honestly, there's benefits to me either, so I'm really not taking a real strong position either way. Because it's one of two things: Either they're separate offenses, which if they are, under 3.04 he's entitled to sever. That's what the Code says.

If they're alternative means of committing one offense, then he's not entitled to sever them. And I don't have to elect. I don't have to do anything. The jury will be told, you know: If you believe this one or this one, you find

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him guilty. It's alternative means of committing a single crime.

So basically what you have is a unit of prosecution case, Your Honor. And, quite honestly, I have done the research. There is not a case out there that says whether theft with two priors is a separate statutory offense from theft over $1,500 if you could break it down.

However what there is is a couple of Court of Criminal Appeals' cases that discuss the gravamen of theft. And it's kind of what you were hitting upon. They said it's a taking of a particular item of property from a particular person. So if you have like say a Jeep stolen and there's two owners -- let's say we're joint owners of it. It's one theft. They've actually addressed that.

On the other hand if you steal two Jeeps, your jeep and my jeep, it's two thefts. You can aggregate, but the State doesn't have to. They've specifically addressed that. They've said the State could break that into two offenses. So for each separate item with a different owner for that item, you can break it down.

Looking at those cases, based on the way they've written them, it seems to indicate the gravamen and the way it is with the one item and one owner you probably only have one offense. There is an argument to be made though there's different elements because one requires two priors and the

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other one has a different value. The benefit to me if they're basically alternative means of committing the same offense is I get to go at him two ways at once. On the other hand if he's right and he's entitled to sever them and they're separate offenses, I get to try him twice and try to get 20 years stacked on him for two different offenses. So that's why I'm not particularly offended by either idea.

But at the end of the day the question is what the law requires. And this case out of Amarillo specifically addresses that if they're not separate offenses, he's not entitled to sever. It cites back to a Court of Criminal Appeals case. And then these cases, Your Honor, all out of -- well, there's one out of El Paso and two or three out of the Court of Criminal Appeals that all talk about what the gravamen of theft is. You might want to review those.

My main concern, whichever way you go, is that it's right. Because if he's right and they're severed and he's taking this position and I try him on one, even if he wins and I get a not guilty I get to turn around and try him on the second if they're separate offenses. So --

MR. COLLINS: And, Your Honor, we also have the issue too that for Count 2 you have to show the two or more prior offenses, which then we're going to run into an issue as far as 404(b) of the Rules of Evidence that is character

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evidence that could come into play with Count 1, which would be inadmissible.

THE COURT: And hard to fix with an instruction. Well, logic says that it's one act, but I think

your last argument makes the point. I don't know how you try both of them when you have that separate element. One is a prior convictions 404(b) problem and, one, it's an element in the case. And I don't know how you separate that.

MR. COLLINS: That bell is hard to be unrung, Your Honor, once it has. THE COURT: No. MR. McCRARY: But that is ultimately not the

question. The question is unit of prosecution. Is it one offense or two? All this bell unrung stuff has really nothing to do with it.

THE COURT: Well, except it's separate elements as you stated in your argument. It's separate elements and therefore it can be two.

MR. McCRARY: I would just ask the Court to look at the case law because, when I first did it, I was going at it as if they were going to be separate offense. That was kind of my thought. I would have two different offenses on him because of the separate elements. Reading the case law I'm not sure that's the case.

But it needs to be right either way because if

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he's going to take this position, I'm telling him straight up he's going to get tried twice. You can't have it both ways. You can't say they're separate offenses and make me pick one and then me not get my shot at the second one.

THE COURT: I understand. And you understand that, too, Counsel? MR. COLLINS: I do, Your Honor. And we're

looking at, too, the value as one thing and then we're going to try a second one and now we're coming back and saying the value is separate. It's one or the other. Again, we're back to: What is it? What was stolen and what is the value?

THE COURT: Well, let me read the cases. Obviously I want to be right, too. I don't want to try it four times.

MR. McCRARY: There is a Court of Criminal Appeals' case, in particular. And it's not amongst those I gave you. But it's fairly recent. And what they did is they indicted a guy for burglary of a habitation and they alleged with intent to commit a felony offense like sexual assault. I think while in the house the guy also took something, so they also did a theft. One is a first degree felony; and, as you know, the other is a second degree. He was tried on both and convicted on both.

He went to the Court of Criminal Appeals and the State's argument was different elements: One is you commit

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theft, the other is you had the intent to commit a sexual assault. The Court of Criminal Appeals said the gravamen of that offense is the entry into the house: one crime, one conviction. And so --

THE COURT: And the gravamen here is the taking of the cigarettes. MR. MCCRARY: And that's where I think the problem comes in. That's why I'm not so sure that it's separate offenses.

MR. COLLINS: And again, if we go back to the paragraphs, they're separate counts with separate elements that are -- again we have different --

THE COURT: Do you have any cases other than these that -- MR. COLLINS: No, Judge. That's what I have is the severing. Again, we're back to arguing that it's separate offenses.

THE COURT: This is set on my March 17th jury docket? MR. McCRARY: Yes, sir. MR. COLLINS: Yes, sir. THE COURT: I will take these cases and do a

little research. I will get back to you as quickly as I can. MR. McCRARY: Thank you, Your Honor. THE COURT: I'm going to take this file with me.

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THE CLERK: Yes, sir. THE COURT: Okay. Thank you. I'm going to --

the indictment is in the file, Counsel. I'm going to give you back what you gave to me.

MR. COLLINS: Thank you, Judge. THE COURT: It's also attached to your motion I

noticed, so I have the file. MR. COLLINS: Thank you. THE COURT: Okay. MR. McCRARY: There's not a clearcut answer or I

would have given it to you. THE COURT: That's true. I can always rely on that, especially when it's in your favor. MR. MCCRARY: Well, it's in my favor either way, Your Honor. Just pick which way you want to go about it. THE COURT: That is interesting on both sides, though. MR. McCRARY: It's going to end badly one way or the other. MS. CHELKOWSKI: Judge, can we approach? I have John Moreno. I talked to Mr. McCrary

about it. He has a drug court interview on Friday, so we would like to see about resetting the case so that way he can get that interview completed.

THE COURT: 2013-358, John Moreno, reset for

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pretrial. MS. CHELKOWSKI: Thank you, Judge. THE COURT: Thank you. MS. CHELKOWSKI: May I be excused? THE COURT: You may. The last custody case I'll take before -- or the

last case I will take before we start the contested hearing is Rick Anthony Cruz, 2014-16 and 2014-17.

I've got a punishment in Lopez still pending. I've got Martinez we're about to start. MR. CANTRELL: Ready, Your Honor. THE COURT: Oh, there you are. Castilleja is ready also, but I'm going to go

ahead and start the contested hearing. I need to get that started. They've been ready since 10:30.

So I'll do Cruz and then we'll start the hearing and then we'll see what we've got. MR. GRAHAM: You're Honor, if the Court can take up the -- Ms. Chenoweth as well? THE COURT: Eventually. It's not a custody case. I have a custody case that's ready. MR. GRAHAM: Okay. THE COURT: How long is that going to take?

It's already ten after 11:00. MR. McCRARY: I don't think it will take too

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long. THE COURT: Well, I'll tell you what. I'm going to reset -- for those counsel that weren't here at 9:00, Lopez will be reset for 1:15.

I'm going to do Martinez. Castilleja. I know you were here,

Mr. Rodriguez, but I've got to get this other one done. Reset for 1:15.

Chenoweth will be reset for 1:15 this afternoon. The other Castilleja will be at 1:15. And for Hart all I need is an application for

court-appointed attorney. (At this time the contested Motion to Revoke in Benito Martinez, III was heard until 12:02 p.m. and then a recess for lunch.) THE COURT: Lopez? MR. DARWIN: Ready. THE COURT: Page 2 is done. Page 3 is done. Castilleja? MR. RODRIGUEZ: Ready, Judge. THE COURT: Both cases ready. And Chenoweth? THE DEFENDANT: I'm here. THE BAILIFF: Mr. Graham hasn't come back yet,

Your Honor.

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THE COURT: Okay. Cruz we did. And Castilleja. Okay. None of those are custody cases, correct? MR. RODRIGUEZ: Yes. Castilleja is. THE COURT: Well, then let's do Felix

Castilleja, 2013-216 and 2014-27. (Discussion off the record and defendant present.) THE COURT: Mr. Castilleja, if you will raise

your right hand. (Defendant sworn.) THE COURT: Okay. And you are Felix Castilleja? THE DEFENDANT: Yes, sir. THE COURT: And the same Mr. Castilleja that was

indicted in -- we're going to do the plea in which one, 2013 --

MR. RODRIGUEZ: The newer cause number. THE COURT: Going to plea in 2014-27. And

that's you? THE DEFENDANT: Yes. THE COURT: Okay. And part of the plea, if I

heard correctly, was to dismiss the 2013 case? MR. RODRIGUEZ: Yes, sir. THE COURT: Okay. I will just put that over

here. We're not going get to those yet.

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We're going to go over some documents. The first document is entitled acknowledgment of discovery and compliance regarding discovery. It's got a longer name than that. Is this your signature on this document?

THE DEFENDANT: Yes, sir. THE COURT: Does that signature represent to the

Court you read and understood this document? THE DEFENDANT: Yes, sir. THE COURT: And Counsel, you had ample

opportunity to review the State's file and you're comfortable that you've done all of the discovery you need to do under the new article 39.14?

MR. RODRIGUEZ: Yes, Judge. This is, of course, the new statute. And in this case since it's a bail jumping/failure to appear, the discovery was very minimal and we have gone over it together.

THE COURT: Okay. Brand new form and y'all still put 2013 on it. You need to fix your form. Okay. So that will be approved. Also in here is a waiver of arraignment. Your signature, Mr. Castilleja? THE DEFENDANT: Yes, sir. THE COURT: Does that signature represent to the

Court you read and understood this document? THE DEFENDANT: Yes, sir. THE COURT: And you understand, since this is

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your first setting, that you and your attorney could have had at least ten days to prepare for trial?

THE DEFENDANT: Yes, sir. THE COURT: And you're comfortable going forward

today with this plea? THE DEFENDANT: Yes, sir. THE COURT: And Counsel, you're waiving your

rights to ten days to prepare and you've seen all of the discovery and you understand all of the facts and you believe this is an appropriate, fair and just way to proceed?

MR. RODRIGUEZ: Yes, Judge. I'm waiving the ten days. THE COURT: Okay. Next is an appointment of an attorney. You've represented Mr. Castilleja in the 2013 case; is that correct?

MR. RODRIGUEZ: The whole time, correct. THE COURT: Okay. And so we're just appointing

you based upon the fact that he's still in jail and his financial position hasn't changed. And the Court will approve the appointment of you to the 2014 case.

The next document is Trial Court Certification of Defendant's Right to Appeal. I need to make two changes to this document and I want to make sure you approve of it. This is a plea bargain case. If you plead guilty and I follow the plea, you will be waiving your right to appeal. So may I

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check that box? THE DEFENDANT: Yes, sir. THE COURT: And then as far as the address goes,

may I just put in Comal County jail? THE DEFENDANT: Yes, sir. THE COURT: Your signature on this document? THE DEFENDANT: Yes, sir. THE COURT: And does that signature represent to

the Court you understood this document and approve the two changes I made?

THE DEFENDANT: Yes, sir. THE COURT: I will approve that and give counsel

your copy and his copy. MR. RODRIGUEZ: Thank you, Judge. THE COURT: Next document is entitled

admonishments, voluntary statements and plea bargain agreement. Your initials on Page 1?

THE DEFENDANT: Yes, sir. THE COURT: Two? THE DEFENDANT: Yes, sir. THE COURT: Three? THE DEFENDANT: Yes, sir. THE COURT: Four? THE DEFENDANT: Yes, sir. THE COURT: Five?

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THE DEFENDANT: Yes, sir. THE COURT: And your initials on signature on

Page 6? THE DEFENDANT: Yes, sir. THE COURT: Do those initials and signatures on

this document represent to the Court that you fully read it and fully understood it?

THE DEFENDANT: Yes, sir. THE COURT: Are you a citizen of the United

States of America. THE DEFENDANT: Yes, sir. THE COURT: Do you understand that you have a

Constitutional right to a trial by jury? THE DEFENDANT: Yes, sir. THE COURT: Do you understand that you have a

Constitutional right to confront the witnesses against you? THE DEFENDANT: Yes, sir. THE COURT: Are you willing to waive those two

rights for the purpose of entering into this negotiated plea agreement?

THE DEFENDANT: Yes, sir. THE COURT: You're going to be pleading guilty

to a third degree felony, which has a range of punishment of not more than ten years or less than two years in a Texas penitentiary and a fine not to exceed $10,000. Do you

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understand that range of punishment? THE DEFENDANT: Yes, sir. THE COURT: The plea agreement will speak for

itself as written, but generally speaking it is eight years in the penitentiary, a $2,000 fine, and the State will dismiss 2013-216. What was the indictment in that case?

MS. RANKIN: Ag assault, deadly weapon. THE COURT: Is that everybody's understanding of

the agreement? MS. RANKIN: Yes, Your Honor. THE COURT: Yours, sir? THE DEFENDANT: Yes. MR. RODRIGUEZ: Yes, sir. THE COURT: You understand I'm not obligated to

follow this agreement? THE DEFENDANT: Yes, sir. THE COURT: If I choose not to follow this

agreement, I will allow you to withdraw the plea of guilty I anticipate receiving from you today.

If you do plead guilty and I do follow the agreement, do you understand that you will have waived any and all rights to appeal, including your right to bring a Motion for New Trial before this court?

THE DEFENDANT: Yes, sir. THE COURT: Counsel, is it your opinion your

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client is competent to stand trial? MR. RODRIGUEZ: Yes. THE COURT: Then based upon this negotiated plea

agreement, how do you plead, sir? THE DEFENDANT: On that bail jumping? THE COURT: On the bail jumping. THE DEFENDANT: I'm -- I plead guilty. THE COURT: Are you pleading guilty because you

are guilty and for no other reason? THE DEFENDANT: Yes, sir. THE COURT: State's evidence. MS. RANKIN: The State offers State's Exhibit 1,

the plea bargain paperwork; State's Exhibit 2 in compliance with the new rules; and State's Exhibit 3 into evidence.

MR. RODRIGUEZ: No objections to those. THE COURT: And 2 was what we went over earlier? MR. RODRIGUEZ: Yes, sir. THE COURT: 1, 2 and 3 are admitted. Is there any reason for a presentence

investigation in this case? MS. RANKIN: No, Your Honor. THE COURT: Then I do hereby find you guilty and

sentence you to eight years in the Texas Department of Criminal Justice, Institutional Division, and give you credit for time served as allowed under the rules and laws of this

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state. Is it a $2,000 fine? Is that what it was? MS. RANKIN: That's correct. MR. RODRIGUEZ: Yes, sir. THE COURT: Assess a $2,000 fine, court costs,

Crime Stopper's fees, and reimbursement of court-appointed attorney's fees.

Is there anything additional? MR. RODRIGUEZ: No, sir. MS. RANKIN: Nothing from the State. THE COURT: Good luck, sir. Thank you, Counsel. And you're going to get me a dismissal in the

2014 case? MS. RANKIN: In the 2013 case. MR. RODRIGUEZ: The 2013 case. THE COURT: I'm sorry. In the 2013 case. MS. RANKIN: Yes, sir. THE COURT: Okay. 2013-227, Gilbert Lopez for

punishment. (Defendant present.) THE COURT: Okay. Here on a state jail

possession case. The agreement was two years in the penitentiary -- or in a state jail facility, probated for five; $1,500 fine; $140 restitution; 250 hours of community

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service restitution; and court costs. Did you bring your court costs? THE DEFENDANT: No, sir. THE COURT: That was part of the deal, wasn't

it? Yeah. If you go back and look, it says you will bring it at the time of punishment. How are we going to deal with that?

MR. DARWIN: Well, Judge, he's -- I think it will probably be better if he could explain. Mr. Lopez can explain what happened recently.

THE DEFENDANT: I recently lost my aunt and my brother went under triple -- THE COURT: Bypass? THE DEFENDANT: -- bypass. And the money I have

been trying to save, I have been using it to fund my trips back and forth.

THE COURT: Okay. Well, then we'll give some time to pay court costs on this. Are you employed now? THE DEFENDANT: Yes, sir. THE COURT: Okay. We'll set up a schedule then

under those circumstances where you can get it paid. THE DEFENDANT: Thank you. THE COURT: And I'm sorry you're having to deal

with all of that. How did the surgery go? Everything good?

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THE DEFENDANT: Yeah. He's just got to go to dialysis now for the rest of his life. But he's alive, so -- THE COURT: Yeah. I was going to say it beats the hell out of the alternative. THE DEFENDANT: Yeah. THE COURT: Okay. Well, I'm glad to hear that. In the conditions we've got drug school,

intensive outpatient and $140 restitution if I didn't say that.

So I will find you guilty and sentence you to two years in a state jail facility, probate it for five years; $1,500 fine; $140 restitution; 250 hours community service restitution; as well as all the other conditions of probation recommended in the supervision plan. And will give him a little bit of time, probably not more than 90 days, to get his court costs paid. Okay?

Don't leave until you've been excused by the probation department. THE DEFENDANT: Thank you, Your Honor. THE COURT: Thank you. MR. DARWIN: Here's that, Judge. THE COURT: Thank you. MR. DARWIN: May I be excused, Your Honor? THE COURT: You may. Thank you. MR. DARWIN: Thank you. See you tomorrow.

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THE COURT: You going to see me in Guadalupe County? MR. DARWIN: Yes, sir. THE COURT: Can't wait. (At the Bench, on the record.) THE COURT: Christopher Graham has been moved

off of our court-appointed list? THE BAILIFF: Yes, Your Honor. He has a tendency to do this kind of thing a lot. (End of Bench discussion.) THE COURT: Ms. Chenoweth, we're going to reset

your case. I was clear. He was to be here at 1:15. I will get your attorney's attention and I will do that before I leave the courthouse today. Thank you. You're excused.

THE DEFENDANT: Okay. Thank you. THE COURT: We're in recess. (Recess.)

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STATE OF TEXAS COUNTY OF COMAL

I, RICHARD E. ROBERTS, JR., Official Court Reporter in and for the 274th District Court of Comal County, State of Texas, do hereby certify that the above and foregoing contains a true and correct transcription of all portions of evidence and other proceedings requested in writing by counsel for the parties to be included in this volume of the Reporter's Record in the above-styled and numbered cause, all of which occurred in open court or in chambers and were reported by me.

I further certify that this Reporter's Record of the proceedings truly and correctly reflects the exhibits, if any, offered by the respective parties.

WITNESS MY OFFICIAL HAND on this, the 31st day of March, 2014. /s/ Richard E. Roberts, Jr.

______________________________________ RICHARD E. ROBERTS, JR., CSR

Texas CSR 5411 Official Court Reporter 274th District Court P.O. Box 311905 New Braunfels, Texas 78131-1905 Expiration: 12/31/14

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REPORTER'S RECORD VOLUME 2 OF 2 VOLUMES 274th JUDICIAL DISTRICT COURT _____________________________________________

NON-JURY DOCKET

_____________________________________________ On the 13th day of March, 2014, the following proceedings came on to be held in the above-titled and numbered cause before the Honorable Gary L. Steel, Judge Presiding, held in New Braunfels, Comal County, Texas.

Proceedings reported by computerized stenotype machine.

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VOLUME 2

Non-Jury Docket March 13, 2014

PAGE VOL.

Excerpts of CR2013-366 ............................ 3 2 Reporter's Certificate ........................... 10 2

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P R O C E E D I N G S

(Beginning of requested excerpt) THE COURT: 2013-366, Chelsie Chenoweth. THE DEFENDANT: Present. THE COURT: Your attorney is Christopher Graham? THE DEFENDANT: Yes, sir. THE COURT: Let me see that file. MS. MAURER: Your Honor, his office called. An

attorney by the name of James Lacy is going to show up and is going to be late. This is one we have a show cause on.

THE COURT: I know. MR. HEARRELL: There's another docket sheet, I

believe. THE COURT: Is your attorney retained or appointed? THE DEFENDANT: Appointed. THE COURT: Mr. Graham is appointed? THE DEFENDANT: Uh-huh. THE COURT: Stay put. (End of requested excerpt) (Beginning of requested excerpt) THE COURT: 2013-366. Is this a probation show

cause? MS. MAURER: That's your show cause. THE COURT: Oh, that's my show cause for

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Christopher Graham. Has anybody from his office gotten here yet? It's my understanding he's filed a Motion for Continuance. It's somewhere. I have been told he's filed a Motion for Continuance.

MR. MCCRARY: I've seen it. It exists. THE CLERK: Yeah. Well, I don't think he

filed -- THE COURT: That's mine. THE CLERK: It's for the show cause. MR. MCCRARY: It's within it somewhere. THE CLERK: Oh, is it? MR. MCCRARY: Yeah. THE COURT: Here's what I'm going to do on my

show cause. I'm going to ask for a visiting judge to hear the show cause. And I would like to ask the district attorney if you would be willing to represent the Court in the show cause against Mr. Graham. Talk to your boss and see whether you're willing to do that for me or not.

And I'm going to instruct the court reporter on the date of his failure to appear at 9:00 and return at 1:15, to assist the visiting judge as well as the State if they choose -- and I think you have the right to opt out if you want to. But I would ask you to please -- I've never done that, but I'd ask you to represent the Court on the show cause.

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What's the date of my show cause for his failure to appear? It's an unsworn declaration on his Motion for Continuance. I will let a visiting judge deal with all of this.

It was my last date. You can find it, Rick. THE REPORTER: Yes, sir. THE COURT: I would like you to prepare a sworn

transcript on the docket call as well as when we broke for lunch when I called the three cases that were left and informed them to be back here at 1:15 and anytime that I called that case and he wasn't here and the times he was here.

He showed up late and then he disappeared. We had court and reconvened, if I remember, at 1:15 or very close thereto; dealt with the other cases; and then left and he wasn't here. He may have shown up later.

I will inform the D.A.: If you're going to do this, I think he did show up later and spoke to -- is that -- to Nick?

THE BAILIFF: Yes, Your Honor. THE COURT: He spoke to my bailiff quite rudely

I understand, but I will let you deal with that. And I will need to get a request for a visiting judge to hear the contempt. I will need to send out another notice to him on the show cause.

And I'd like the D.A. to report back to me on

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whether you're going to represent me in that case or not. MR. McCRARY: I will talk to the boss. THE COURT: Ms. Chenoweth, who is coming over

from his office? THE DEFENDANT: I don't know. THE COURT: You don't know? THE DEFENDANT: No, sir. THE COURT: When your attorney gets here tell

him I'd like to talk to him. THE DEFENDANT: I don't even know if he's coming. I haven't talked to him at all since the day I -- when I came back after lunch and he never showed up.

THE COURT: Do we have any kind of Motion for Continuance for the pretrial today? I've not been shown one. MS. MAURER: I haven't seen it. THE COURT: Then issue him a show cause for not

being here at 9:00 today, also, with the same visiting judge. I'll ask y'all to represent me in that one, also. THE REPORTER: Do you want this portion, also? THE COURT: Pardon me? THE REPORTER: Do you want this portion, also? THE COURT: Yes, I do. Ms. Chenoweth, if you will approach. (Ms. Chenoweth approaches.)

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March 13, 2014

THE COURT: You were appointed Mr. Graham; is that correct? THE DEFENDANT: Uh-huh. THE COURT: He's been removed from our

court-appointed list. I'm going to substitute a new attorney for you. Don't leave until you find out who that is.

THE DEFENDANT: Okay. THE COURT: And then once we find out who that

is, if they're here I will let you confer with them and we'll give them a reset. If it's somebody that's not here today, then I will excuse you and you'll get new notice through the new counsel.

THE DEFENDANT: Okay. MR. MCCRARY: Just for the record, can we be

sure she doesn't have any objection to that, Your Honor? THE COURT: Do you have any objections to that? THE DEFENDANT: No. THE COURT: Are you sure? THE DEFENDANT: Uh-huh. THE COURT: Okay. And just so we were clear,

you're not even sure whether you're going to have counsel here today. Is that what you were telling the Court?

THE DEFENDANT: Uh-huh. I haven't anything from him at all. THE COURT: Since?

RICHARD E. ROBERTS, JR., CSR

8 Excerpts of CR2013-366 285

March 13, 2014

THE DEFENDANT: Since the last time I had court and he didn't show up after lunch when I came back. THE COURT: Okay. And you don't have any objection to me giving you a new attorney off of our list that's been approved by the Court?

THE DEFENDANT: No, I don't. THE COURT: Please don't leave until we've done

that. THE DEFENDANT: Okay. THE COURT: Get me a substitution of counsel in

this case. MS. MAURER: Yes, sir. (End of requested excerpt) (Beginning of requested excerpt) THE COURT: Let me do that real quick and see

who we're missing. Michael Zamora? Christopher Graham or anybody from his law office? (End of requested excerpt) (Beginning of requested excerpt) THE COURT: I've got Oaks conferring. We're waiting for Mr. Esman now. I've got Valdez on a Motion to Suppress. I'm still looking for Mr. Graham. I don't think

he's going to be here.

RICHARD E. ROBERTS, JR., CSR

9 Non-Jury Docket 286

March 13, 2014

I'm waiting for Mr. Peterson to come back on Hart. I've got Carnes with Mr. Rodriguez as conferring. Covarrubias with Mr. Darwin that's conferring. I've got Reyes is ready. I've got Kuykendall waiting for a State's

witness. Ontiveros conferring. Zuniga conferring. (End of requested excerpt)

RICHARD E. ROBERTS, JR., CSR

10 Non-Jury Docket 287

March 13, 2014

STATE OF TEXAS COUNTY OF COMAL

I, RICHARD E. ROBERTS, JR., Official Court Reporter in and for the 274th District Court of Comal County, State of Texas, do hereby certify that the above and foregoing contains a true and correct transcription of all portions of evidence and other proceedings requested in writing by counsel for the parties to be included in this volume of the Reporter's Record in the above-styled and numbered cause, all of which occurred in open court or in chambers and were reported by me.

I further certify that this Reporter's Record of the proceedings truly and correctly reflects the exhibits, if any, offered by the respective parties.

I further certify that the total cost for the preparation of this Reporter's Record is $457.50 and will be paid by Comal County.

WITNESS MY OFFICIAL HAND on this, the 31st day of March, 2014. /s/ Richard E. Roberts, Jr. _________________________________

RICHARD E. ROBERTS, JR., CSR

Texas CSR 5411 Official Court Reporter 274th District Court P.O. Box 311905 New Braunfels, Texas 78131-1905 Expiration: 12/31/14

RICHARD E. ROBERTS, JR., CSR

Case Details

Case Name: Graham, Christopher L.

Court Name: Court of Appeals of Texas

Date Published: Mar 4, 2015

Docket Number: WR-82,944-01

Court Abbreviation: Tex. App.