                                                                                        ACCEPTED
                                                                                   01-15-00019-CV
                                                                         FIRST COURT OF APPEALS
                                                                                 HOUSTON, TEXAS
                                                                             1/26/2015 10:52:24 AM
                                                                               CHRISTOPHER PRINE
                                                                                            CLERK



                 No. 01-15-00019-CV
                                                                  FILED IN
                                                           1st COURT OF APPEALS
                                                               HOUSTON, TEXAS
                                IN THE                     1/26/2015 10:52:24 AM
                          COURT OF APPEALS                 CHRISTOPHER A. PRINE
                               FOR THE                              Clerk

                       FIRST DISTRICT OF TEXAS


                                In Re
                          CHARLES S. IUPE, JR.,
                                        Relator.


           Original Proceeding on Petition for Writ of Habeas Corpus
        from the Harris County, Texas Probate Court Number Three (3)
         Hon. Rory R. Olsen, Presiding, Trial Court Cause No. 417,216


                RELATOR’S SUPPLEMENT TO PETITION
                   FOR WRIT OF HABEAS CORPUS




Howard M. Reiner                                     Jonathan S. Stoger
Texas Bar No. 16754780                               Texas Bar No. 00797504
problaw@aol.com                                      jstoger@stogerlaw.com
Howard M. Reiner & Associates                        The Stoger Law Firm
3410 Mercer Street                                   2301 Morse
Houston, Texas 77027                                 Houston, Texas 77019
Tel: (713) 963-8004                                  Tel: (713) 522-2848
Fax: (713) 963-8044                                  Fax: (713) 522-1120

                            Attorneys for Relator




 
TO THE HONORABLE JUSTICES OF THE COURT OF APPEALS:

      Relator, Charles S. Iupe, Jr., files this supplement to his Petition for Writ of

Habeas Corpus to address evidence included in his supplemental record.

                            I. Background of the Case

      The trial court found Iupe in criminal contempt on December 18, 2014 for

allegedly failing to attend an October 9, 2014 contempt hearing. As highlighted in

Iupe’s original habeas corpus petition, the constitutional defect with this process is

that he was never charged by the court with failure to appear at the October

hearing, no show cause orders were ever issued or personally served on him on the

charge, and no hearing was ever held on the charge. The October 9 contempt

hearing was to address Iupe’s alleged failure to submit to a mental examination,

not to address his alleged failure to attend the October 9 hearing. Since failure to

appear, even for a contempt hearing, is constructive contempt and requires notice

of the failure to appear charge and a subsequent hearing on the charge, then Iupe’s

due process rights were violated by summarily holding him in contempt in

December without hearing.

                              II. Additional Evidence

      Iupe was arrested on January 7, 2015 pursuant to the contempt judgment and

incarcerated in the Harris County Jail. To attempt to secure his release on bond, the




                                          1
 
habeas corpus petition had to be prepared on an emergency basis.1 The Writ of

Commitment had not been returned yet and the court reporter’s record from the

October 9, 2014 hearing could not be secured. Since that time, the Writ has been

returned and the court reporter’s record has been prepared, and both are included in

a supplemental record.2

                                  III. The October 9, 2014 Court Reporter’s Record

              There was never a hearing on the charge of failure to appear at the October

9, 2014 setting, so there is no court reporter’s record on the charge. The October 9,

2014 hearing was to consider contempt for alleged failure to submit to the mental

examination only. The court reporter’s record from the October 9 hearing is likely

immaterial to this petition but has been obtained anyway. It is 27 pages long and

reflects the court’s determination that Iupe was not present, rulings on various

items of evidence, telephone testimony of the psychiatrist appointed to examine

Iupe, and specific argument by Iupe’s attorney-ad-litem, Howard M. Reiner, as to

why Iupe could not be held in contempt for alleged failure to submit to the mental

examination or alleged failure to appear in court.3


                                                            
1
  Iupe has since posted the required bond in cash and has been released from jail.
2
  Certified copies of other court papers are also included in the supplemental record along with
an affidavit of counsel attesting that all papers are authentic and certifying that no show cause
orders were issued on the failure to appear charge and no hearings were ever held on the charge.
3
  The court claimed that everyone stipulated that Iupe was not present, but there is nothing in the
record to indicate that Iupe’s counsel made such a stipulation. (Supplemental Record Item 1 [RR
6:13-15]).
                                                               2
 
      Specifically, as to contempt for alleged failure to submit to the mental

examination, Mr. Reiner argued:

     But what is interesting is there is no specific provision as to this situation
     [in the Estates Code]. However, in the Texas Rules of Civil Procedure,
     under 215.26, it specifically says that the Court cannot hold somebody in
     contempt for failing to get examined.

     And so the issue I have is since there is no specific – since there is no
     specific statute, I think the Texas Rules of Civil Procedure would control
     in this instance.

(Supplemental Record Item 1 [RR 17:16-24]).

      As to possible contempt for failure to appear in court, Mr. Reiner argued:

     Specifically, the order [for show cause to appear at the October 9
     hearing] that he was served with says: Show cause, if any, why he
     should not be held in contempt for failure to appear for an independent
     mental exam as ordered by the Court on May 20th, directing him to
     undergo an independent medical exam.

     If, in fact, he was going to be held in contempt for his failure to appear at
     the last hearing, he should have been apprised of that in a separate
     motion.

(Id. [RR 25:12-21]).

      The court closed the hearing by asking counsel to submit briefing. (Id. [RR

26:15-20]). The court did not hold Iupe in contempt for alleged failure to submit to

the mental examination and has not done so subsequently.

      The October 9 hearing should not have proceeded at all in the alleged

absence of Iupe. When an alleged contemnor fails to appear for a contempt

hearing, the court is not at liberty to proceed forward and conduct a trial in
                                           3
 
absentia. Ex parte Johnson, 654 S.W.2d 415, 420-22 (Tex. 1983). Instead, the

alleged contemnor must be brought to court before the hearing may commence. Id.

So, upon determining that Iupe was not present, the court should have adjourned

proceedings until Iupe could be brought in. Everything that followed was error and

violated Iupe’s rights.

                                     PRAYER

       WHEREFORE, PREMISES CONSIDERED, Relator, Charles S. Iupe, Jr.,

prays that his Petition for Writ of Habeas Corpus be granted in all things and that a

Writ of Habeas Corpus be issued, that the original and nunc pro tunc contempt

judgments and orders of commitment be declared null and void, that he be ordered

permanently discharged from custody and that the fine imposed against him be

remitted and cancelled, that he be discharged from bond and that his cash bond

money be ordered returned, and that he be granted his costs and any further relief

that he is entitled to.



Respectfully submitted,


/s/ Howard M. Reiner                                /s/ Jonathan S. Stoger
Howard M. Reiner                                    Jonathan S. Stoger
Texas Bar No. 16754780                              Texas Bar No. 00797504
problaw@aol.com                                     jstoger@stogerlaw.com
Howard M. Reiner & Associates                       The Stoger Law Firm
3410 Mercer Street                                  2301 Morse
Houston, Texas 77027                                Houston, Texas 77019
                                         4
 
Tel: (713) 963-8004                               Tel: (713) 522-2848
Fax: (713) 963-8044                               Fax: (713) 522-1120

Attorney-ad-Litem for                             Co-Counsel with Attorney-ad-
Relator Charles S. Iupe, Jr.                      Litem for Relator Charles S.
                                                  Iupe, Jr.




                               CERTIFICATION

       I, attorney-ad-litem for Relator, Charles S. Iupe, Jr., certify that I have
reviewed this supplement to petition and concluded that every factual statement in
this supplement is supported by competent evidence included in the appendix,
original record, or supplemental record.

                                                  /s/ Howard M. Reiner
                                                  Howard M. Reiner




                       CERTIFICATE OF COMPLIANCE

     I certify that this document contains 1046 words, as measured by the
word count feature in Microsoft Word 2013, and was prepared in Times New
Roman font with 14-point print.


                                                  /s/ Howard M. Reiner
                                                  Howard M. Reiner




                                        5
 
                         CERTIFICATE OF SERVICE

      I certify that on January 23, 2015, I served a true and correct copy of this
Supplement to Petition on all parties and counsel, as reflected below, via e-
service through efile.txcourts.gov.

                                                  /s/ Howard M. Reiner
                                                  Howard M. Reiner

Darlene Payne Smith
dsmith@craincaton.com
Courtney McMillan Lyssy
clyssy@craincaton.com
Crain, Caton & James, P.C.
1401 McKinney Street, Suite 1700
Houston, Texas 77019
Tel: (713) 658-2323
Fax: (713) 658-1921

Attorneys for Real Party-in-Interest
Michael J. Iupe

Fatima Breland
fbreland@sbcglobal.net
The Breland Law Firm
2726 Bissonnet Street, No. 240-194
Houston, Texas 77005
Tel: (713) 661-1335
Fax: (713) 660-9264

Guardian-ad-Litem for Relator
Charles S. Iupe, Jr.

Hon. Rory Olsen, Presiding Judge
Harris County Probate Court Number Three
201 Caroline, 7th Floor
Houston, Texas 77002
(Via e-filing with County Clerk) 


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