Ex Parte Sentell , 153 Tex. 252 ( 1954 )

Per Curiam.

In this original habeas corpus proceeding, relator, Hon. Frank Sentell, seeks release from an order of the district court finding him guilty of contempt of court, and assessing his punishment at a fine of $100 and confinement in jail for 72 hours.

The matters under review arose in a hearing of a petition for a temporary injunction sought by Wilson et al, defendants, in a suit filed by Frank Stephenson, as next friend for his mother, Sallye I. Stephenson, to cancel a deed executed by her to Wilson, alleging that it was executed while she was so mentally infirm that she did not know what she was doing and had accepted much less money than the property was worth. Relator was attorney for plaintiff.

In their answer the Wilsons specially denied that Sallye I. Stephenson was of unsound mind when she executed the deed or that any overreaching was exercised by them on her to get the deed. In their cross action and prayer for injunction the Wilsons were joined by Mrs. Sallye Stephenson as cross plaintiff. They alleged that the latter did not wish to retract the deed; that she did not lack mental capacity; that Frank Stephenson had no authority to bring suit in her behalf, but was attempting to “perpetrate a vicious fraud” upon the court. They alleged that Frank Stephenson had on several occasions threatened to do bodily harm to all cross plaintiffs and damage to the property; that he had often physically assaulted Sallye Stephenson; that Mrs. Frank Stephenson had one time attacked Mrs- Sallye Stephenson, breaking the latter’s left arm, that this situation compelled her to have Frank Stephenson placed under a peace bond; that cross plaintiffs believed he would carry out his threats of further injury to them and to the property unless restrained.

Mrs. Sallye Stephenson also filed a disclaimer of any interest in the land, denied that Frank Stephenson had any interest in it and prayed that she be permitted to represent herself in the suit without hindrance from him.

It was in this background of hard feeling between the parties that the trial judge began a hearing on the prayer for injunction.

We have concluded that the validity of the contempt order must be measured under the principles applied in the case of Ex Parte Fisher, 146 Texas, 328, 206 S.W. 2d, 1000.

That case applies the fundamental rule that a proceeding like this is not an appeal from a court judgment but is a collateral attack on a contempt order, which can be sustained only after it is shown that the order is void; and the innocence vel non of relator is immaterial in the determination of its validity. Among supporting authorities cited is Ex Parte Testard, 101 Texas, 250, 106 S.W. 319.

Recognizing this limitation upon the power of this court, we said in the Fisher case: “The inquiry before us is whether or not a citizen is restrained of Ms liberty without due process of law. In determining this matter we are restricted to the question of jurisdiction, the lack of which would render the judgment void. In passing on the court’s authority we look to the jurisdiction of the subject matter involved in the alleged contempt, jurisdiction of the person, and the power of the court to render the particular judgment- * * * We may consider the facts only for the purpose of determining whether they constituted acts sufficient to confer jurisdiction upon the court to make the particular order.”

The facts in the present case are very different from those in the Fisher case, so it seems necessary to set out the several verbal clashes between relator and the trial judge which the latter held contemptious.

After two preliminary matters, had been amicably disposed of the hearing continued with fair decorum while Mr. Armstrong was questioning Frank Stephenson until he began asking Stephenson about threats allegedly made by Mm against and about Wilson. Then the following occurred:

“Q. You didn’t threaten his life?

“A. Could I make an exception to that?

“Q. You answer the question. The Court will rule on whether you answer them or not, Mr. Stephenson?

“A. He told me what he was going to do—

“MR. ARMSTRONG: I didn’t ask you what he told you, I asked you — read the question back mister reporter ?

“MR. Sentell: If the Court please, let the witness do the answering.

“MR. ARMSTRONG: He is not going to make any speech to me, Mr. Sentell. I don’t want any speeches.

“THE COURT: Just answer the question.

“MR. SENTELL: If the Court please, we are going to try to protect the witness within his legal right. And, the idea of Counsel bulldozing the witness and trying to make him answer his way, and cut him off when he wants to, I don’t tMnk should go in tMs court-

“THE COURT: He can answer the question in plain English. Go ahead and just answer the—

“MR. SENTELL: And, he is entitled always to his explanation.

“THE COURT: Go ahead.

“MR. SENTELL: It is fundamental.

“MR. ARMSTRONG: Mister reporter, read the question back that he hasn’t answered as of yet-

“THE REPORTER: Do you have any idea which one it is?

“MR. ARMSTRONG: About whether he was in a composed manner when he threatened to kill Mr. Frank Wilson.

“MR. SENTELL: We object to that statement of the question.

“THE COURT: Just read the question, that is not the way the question was. Just find the question and read it, and that will settle it.

“THE REPORTER: Now, here is the question that Mr. Sentell objected to, is that the one you want?

“MR. ARMSTRONG: Yes, uh huh.

“THE REPORTER: ‘You didn’t threaten his life?’

“MR. ARMSTRONG: Now, that is a simple question I asked you.

“THE COURT: Now, just answer that question, Frank.

“MR. SENTELL: Now, does the Court require him to answer just ‘Yes’ or ‘No’?

“THE COURT: Well, I don’t see any other way you could answer it.

“MR. SENTELL: If the Court please, under the fundamental rules any time a witness answers ‘Yes’ or ‘No,’ he has got a right to explain his answer.

“MR. ARMSTRONG: But he must first answer it ‘Yes’ or ‘No,’ then he has a right to explain it, that is true.

“MR. SENTELL: He has a right to explain it.

“MR. ARMSTRONG: But, he had started explaining it.

“THE COURT: Both of you sit down and let him answer it, did or — the question is did you threaten the man’s life, answer whether you did or didn’t. * * ❖

“Q. Had you talked to Mr. Wilson before the incident that you detailed to the Court, a few days before or a few weeks before?

“A. I talked to him a few weeks before.

“Q. And, as a matter of fact you have asked him to go try to buy a piece of property off of your mother’s property so he could sell it to you, didn’t you?

“A. Yes, I asked him what he—

“Q. And, you got furious because he wouldn’t—

“MR. SENTELL: Just a minute, if the Court please, if Counsel will let him finish his answer instead of trying to drown him—

“MR. ARMSTRONG: He was making a speech when he said yes he did.

“MR. SENTELL: If the Court please—

“THE COURT: Well, let him ask the question, and then object—

“MR. SENTELL: —Counsel’s tactics with his big booming voice is to drown him out before he finished.

“THE COURT: Well, all right, let him ask the question and then state your objection, he hasn’t finished the question. Go ahead and ask the question.

“MR. SENTELL: He was answering when he broke in, and that is why we are objecting.

“THE COURT: No, he broke in with the answer. Go ahead and ask your question.

“MR. SENTELL: If the Court please, we ask for — we call for a reading of the record up to that point.

“THE COURT: Well, now, I heard it, and I said the answer broke in on the question. I don’t want to argue about it. Ask your question.

“MR. SENTELL: You mean, while he was answering (and other words which the reporter not able to separate from other speakers’ words) — ■

“THE COURT: Yes, sir; yes, sir; yes, sir, before Armstrong— before — before Armstrong — wait a minute—

“MR. SENTELL: —(a flow of words which the reporter not able to separate because of other speaker’s words) — note our exception to the ruling of the Court—

“THE COURT: Before — sit down just a minute, or I am going to fine you for contempt — before Armstrong finished his question , the witness broke in with an answer. Now, I don’t want to hear any more about it.

“MR. SENTELL: I would like a reading of the record on that, I didn’t hear it that way.

“THE COURT: I don’t mean to argue with you about it, and the next time you argue with me I am going to fine you for contempt.

“MR. SENTELL: I am going to make my exception every time I want to in this record.

“THE COURT: Well, I am going to hold you in con—

“MR. SENTELL: It is my duty to do so.

“THE COURT: All right, you are in contempt; and, I am going to fine you $100.00.

“MR. SENTELL: For what?

“THE COURT: For contempt of court.

“MR. SENTELL: For what?

“THE COURT: For arguing with the Court when I have made a ruling, and told you that it was final.

“MR. SENTELL: I am going to make my exceptions (and other words which the reporter not able to separate from other speaker’s words) — ■

“THE COURT: Well, now, I find you $100.00 for contempt, and the next time it is going to be higher. Do you want to argue?

“MR. SENTELL: I am still making my exception, that is what I have done.

“THE COURT: Well, I acknowledged your exception. Now, I am going to expect you to pay that $100.00 into court at 1:00.

“MR. SENTELL: (utterances which reporter not able to translate.)

“THE COURT: Go ahead with your questions.”

The second episode, which terminated in the jail sentence against relator, occurred while defendant (and cross plaintiff) Wilson was on the stand on redirect examination by Mr. Armstrong. It arose as follows:

“Q. Mr. Wilson, when a man threatens you in the tone and the expression as he did—

“MR. SENTELL: Now, if the Court please, we object to that, there is no evidence in here for the support of that question.

“THE COURT: Well, let’s see what the question is — go ahead and ask it.

“MR. SENTELL: The question is (and other words the reporter unable to separate from other speaker.)

“THE COURT: The man hasn’t finished asking the Question.

“MR. SENTELL: We will ask the court reporter to read the question.

“THE COURT: Well, I will do the asking — go ahead and finish the question.

“Q. You testified about the cursing and in a loud language threatening to kill you didn’t you?

“A. Yes, sir.

“Q. A man in that tone of voice and talking in a loud manner, and furious as it was, and threatening to kill you, it makes you think, don’t it?

“A. That is right.

“MR. SENTELL: Now, if the Court please, that wasn’t—

“Q. That is what you—

“THE COURT: Now, wait, let’s get the objection.

“A. That is right.

“MR. SENTELL: Now, if the Court please, that isn’t the question that he asked a while ago and I objected to.

“THE COURT: Well, now, just for your benefit, you insisted that there was a question and I say that it wasn’t a question, it wasn’t finished — now, read it back, reporter, and then I don’t want to hear any more of this kind of stuff. Now read that question back that Mr. Armstrong started to ask and didn’t get a chance.

“THE REPORTER: ‘Mr. Wilson, when a man threatens you with the tone of voice and the expression on the fact like he did you’ — and, that is as far as I got.

“THE COURT: Now, Mr. Sentell, you argue that that was a question in the face of me telling you that the question wasn’t finished. Now, I don’t want to hear any more of this—

“MR. SENTELL: We objected to the question as stated at that time.

“THE COURT: It wasn’t no question. You interrupted the man and didn’t give him a chance to finish. Now, go slow and I will try to separate this stuff and give you both your full rights.

“MR. SENTELL: Note our Exception.

“THE COURT: You don’t have any exception.

“MR. SENTELL: We ask the record to show it.

“THE COURT: Well, I am going to put you in jail, if you keep on.

“MR. SENTELL: (sounds unintelligible to the reporter).

“THE COURT: I am holding you in contempt, and sentencing you to three days in jail. Now, Mr. Haynes, he is your prisoner.

I am going to postpone this hearing for three days in the same condition as it how stands-

“MR. SENTELL: Note our exception, and—

“THE COURT: All right, you have your full bill.”

These quotations show that in the first episode relator was correct in his contention as to the state of the record; while in the second he was wrong. If the issue before us were confined to what was said by relator, he might be entitled to a discharge under cases like Ex Parte Crenshaw, 96 Texas Crim. Rep. 654, 259 S.W., 587, 31 A.L.R. 1181, a decision by our Court of Criminal Appeals. However, the issue is not so limited, hence we do not decide it.

In his order holding relator in contempt after the first episode, the trial court said: “That at the time that this Court fined the said Frank Sentell $100.00, and in violation of the Court’s Rulings, orders and admonitions hereinabove referred to, it was evident to this Court that after the assessing of said fine of $100 00 the said Frank Sentell’s attitude, statements and expressions showed a contemptious attitude and disrespect of this Court’s orders, and that this Court advised the said Frank Sentell that in view of such attitude he, the said Frank Sentell, was then and there ordered and directed to pay said $100.00 fine into the Registry of this Court on or before 1:00 p.m. of date hereof, and that then and there the said Frank Sentell in his further contemptious attitude stated to the Court ‘We will see about that’.”

While the reporter’s notes recite that there were utterances by Mr. Sentell which the reporter was “not able to translate,” that does not disprove the court’s statement in his order that Mr. Sentell said “We will see about that.”

The second episode, as stated in the above quotations from the statement of facts, is described in the court’s order as follows:

“* * * and, the court after having the record read back by the Official Court Reporter, which said record reflected and bore out the Court’s previous admonition to the witness, the ruling and objection of the said Frank Sentell that the said question had not been developed by said counsel; and, that the Court then and there admonished the said Frank Sentell to go slow and take things easy and let the Counsel ask and propound the question in full and give the witness time to answer and he, the said Frank Sentell, the proper time to make the objection, and if this rulue was followed that the matter could be straightened out very easily and that he could have and protect his rights, and that in defiance of the Court’s suggestions and admonitions the said Frank Sentell continued to argue and harange said Court and insist that the witness be permitted to answer the unfinished question.

“That this Court then and there again admonished the said Frank Sentell that if he continued to argue this point with the Court after the Court had ruled, that this Court would have to hold him, the said Frank Sentell, in contempt and confine him to jail, at which time the Court did not catch the side-bar remark made, but it was evident to this Court from the expression and attitude, of the said Frank Sentell that he then and there, as he had in the past, defied the Court to hold him in contempt.”

Undoubtedly it was proper for the trial court to conclude from the conduct and appearance of relator, independent of what he said, that the latter was in a “contemptious attitude.” He saw relator’s attitude, expression, and appearance during the verbal exchanges above quoted, and he found it contemptious. Relator cites us nothing substantial to show that there were no facts to support the judge’s conclusion that he was in contempt in the manner stated in the order, although the burden of proof was on him to do so. Ex Parte Lipscomb, 111 Texas, 408, 239 S.W., 1101. The result is that he has failed to show that the order committing him for contempt is void.

Relator contends that the order under review is void because it was oral. The record shows that a written order of contempt was filed after relator was placed in jail on the oral direction of the court to the sheriff; that it was filed with the clerk late in the afternoon of Oct. 26, 1953; and that a proper commitment was at once executed by the clerk and handed to the sheriff. Relator’s petition was filed here at 7:30 p.m., Oct. 27, 1953. Since these instruments were in effect at the time the temporary writ of habeas corpus was issued, we must base our decision on them. Ex parte Fisher, supra. Relator’s point is overruled.

The order granting a temporary writ is set aside and relator is remanded to the Sheriff of Scurry County, Texas, to carry out the order of the trial court. We note that the commitment directs the Sheriff to hold relator until he has served three days in jail and has paid the $100.00 fine. This is a variance from the court’s order, which fines relator $100.00 and sentences him to jail for three days, so we remand the relator to the Sheriff until he has served the three days ordered by the court, since the order is what controls.

Opinion delivered February 24, 1954.