                                                                                       ACCEPTED
                                                                                   01-15-00401-CR
                                                                        FIRST COURT OF APPEALS
                                                                                HOUSTON, TEXAS
                                                                              7/24/2015 3:17:06 PM
                                                                             CHRISTOPHER PRINE
                                                                                            CLERK

                            NO. 01-15-00401-CR

                                IN THE                            FILED IN
                        FIRST COURT OF APPEALS             1st COURT OF APPEALS
                                                               HOUSTON, TEXAS
                          AT HOUSTON, TEXAS                7/24/2015 3:17:06 PM
                                                           CHRISTOPHER A. PRINE
                                                                   Clerk
                          IN THE MATTER OF
                      DAVID CHRISTOPHER HESSE,
                               Appellant


                       MOTION FOR SANCTIONS


TO THE HONORABLE JUDGES OF SAID COURT:

      Appellant, David Christopher Hesse, moves for sanctions against Gail

Kikawa McConnell, and shows:

      1.     This motion is precipitated by allegations and statements

contained within the State’s Appellate Brief, signed by Ms. McConnell, which

are false.

      2.     Counsel has a duty of candor to this Court. See Tex. Disciplinary

R. Prof. Conduct § 3.03, reprinted in Tex. Gov’t Code Ann., Tit. 2, subtit. G,

App. A (Vernon 2005) (Tex. State Bar R. art. X, § 9). “A lawyer shall not

knowingly make a false statement of material fact ... to a tribunal.” Id. §

3.03(a)(1). As will be shown, Ms. McConnell violated that duty to this Court.

      3.     Because of the false statements and violations of her duty of

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candor to this Court, Appellant feels compelled to bring these violations to the

Court’s attention.

FACTUAL BASIS OF MOTION:

       4.     Throughout the State’s Brief, Ms. McConnell repeatedly states that

Appellant requested a de novo hearing under § 21.002(d), Tex. Gov’t Code.

Nowhere in the contempt hearing of February 26, 2015, do the words, de

novo, appear. See C.R. pp. 34 – 39. Nowhere in § 21.002(d), Tex. Gov’t Code,

does the statute state that the hearing is de novo. Instead, the statute states

that the officer of the court shall be released pending a determination of his

guilt or innocence. And, in light of the procedure mandated by Ex parte

Pink,1 the trial in front of the judge to whom the contempt is assigned is to

determine, in the first instance and not de novo, whether the officer of the

court is or is not guilty of contempt.2

       5.     In the Statement of Facts, first paragraph, Ms. McConnell

challenged all factual assertions contained in Appellant’s Brief. Two of the



       1
              Ex parte Pink, 645 S.W.2d 262, 263 (Tex. Crim. App. 1982). …
       2
               Interestingly, nowhere in the State’s Brief is Pink cited or distinguished or even
argued not to be controlling. The only reference to Pink is when the State quotes from
Appellant’s Brief. This failure also violates the duty of candor, as an attorney is not free to
turn a blind eye to the law. See Bradt v. West, 892 S.W.2d 56, 79 (Tex.App.–Houston [1ST
Dist.] 1994, writ denied).

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factual assertions contained within Appellant’s Brief are:

     “The Commitment Orders were executed and Hesse was taken into

custody by the Sheriff of Fort Bend County.3

     After he was taken into custody, Hesse was booked in, processed, and

then allowed to post a $500 personal recognizance bond.4 No explanation is

available as to why the Fort Bend County Sheriff made the bond in the penal

sum of $500.” (Appellant’s Brief, Statement of Facts, page 5)

     6.    Ms. McConnell’s assertion is that “Appellant was escorted to the

Fort Bend County Jail to process his personal recognizance bond.” (State’s

Brief, Statement of Facts, p. 1) This argument ignores the Order of

Commitment contained within the two Judgments of Contempt (C.R. pp. 6 –

11), the order pronounced by Judge Duggan that Appellant be taken into

custody (C.R. p. 37, ll. 10 – 20), and the Record at C.R. p. 38, ll. 16 – 20,

showing that Appellant was taken into custody.

     7.    On page 2 of the State’s Brief, Ms. McConnell states that

“Appellant was not arrested, but detained and released after completing the

Sheriff’s procedures for recording a personal recognizance bond.”



     3
           C.R. p. 250. …
     4
           C.R. p. 247. …

                                      3
      8.    Attached hereto, marked Exhibit 1 and incorporated by reference,

for all intents and purposes as though set forth herein verbatim, is a Certified

Copy of the Appellant’s booking photograph taken February 26, 2015 at

15:16:59. Appellant requests the Court to take judicial notice of same.

      9.    Appellant also directs the Court to the Personal Recognizance Bail

Bond. (C.R. p. 247) While this document does not appear to bear a time

stamp, it would not have been executed until after Appellant was fully booked

and processed. And it does not reflect that it is a Non-Arrest Bail Bond.

ARGUMENT AND AUTHORITY:

      10.   A court has inherent power to sanction bad faith conduct during

the course of litigation that interferes with administration of justice or the

preservation of the court’s dignity and integrity. Onwuteaka v. Gill, 908

S.W.2d 276, 280 (Tex.App.–Houston [1st Dist.] 1995, no writ); Metzger v.

Sebek, 892 S.W.2d 20, 51 (Tex.App.–Houston [1st Dist.] 1994, writ denied);

see Eichelberger v. Eichelberger, 582 S.W.2d 395, 399 (Tex.1979). And

Courts possess inherent power to discipline an attorney’s behavior. See

Merrell Dow Pharm., Inc. v. Havner, 953 S.W.2d 706, 732 (Tex.1997)

(order on mot. for reh’g).

      11.   Counsel should be allowed great latitude in presenting argument



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to the Court. See In re Maloney, 949 S.W.2d 385, 388 (Tex.App.-San

Antonio 1997) (en banc) (per curiam). However, that latitude is not

unrestricted. See Merrell Dow Pharm., Inc. v. Havner, 953 S.W.2d 706,

732 (Tex.1997) (order on mot. for reh’g); In re Maloney, 949 S.W.2d at 388.

Deliberately misstating facts demeans the integrity of the judicial system and

violates the rules of professional conduct. No Court has countenanced an

attorney deliberately misstating operative facts.

      12.   The fact that there is a booking photograph of Appellant within the

records of the Fort Bend County Jail, conclusively proves that Appellant was

arrested. To book someone means to record the name of (a person arrested)

in a sequential list of police arrests, with details of the person’s identity

(usually including a photograph and a fingerprint), particulars about the

alleged offense, and the name of the arresting officer <the defendant was

booked immediately after arrest>. Source: Black’s Law Dictionary (10th ed.

2014).

      13.   Ms. McConnell’s Statement of Fact, that Appellant was “escorted”

to the Fort Bend County Jail, is disingenuous at best. To escort, as a verb,

means to attend or accompany as an escort.          Source: Random House

Dictionary, © Random House, Inc. 2015. By using the term, “escorted”, Ms.



                                      5
McConnell implies that Appellant was walked over to the Fort Bend County

Jail. No. Appellant was taken into custody by the bailiff, taken through the

inner bowels of the Fort Bend County Courthouse and the tunnel to the Fort

Bend County Jail, there to be booked, fingerprinted and photographed. He

was in custody, under arrest. A person is in “custody” only if, under the

circumstances, a reasonable person would believe that his freedom of

movement was restrained to the degree associated with a formal arrest.

Stansbury v. California, 511 U.S. 318– 320 - 324 (1994). No one would

believe that anyone on the other side of the bars in the Fort Bend County Jail

was not under arrest.

REQUESTED RELIEF:

      14.   In light of the deliberate misstatements made in the State’s Brief,

this Court should hold a hearing and require the State to show cause, if any it

has, as to why its Brief should not be stricken and the State ordered to replead.

Further, at the hearing this Court should determine what sanctions to impose

of Ms. McConnell for the violations of her ethical duties to this Court,

including her duty of candor, as set forth above. This Court should grant

David Christopher Hesse general relief.




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                                      Respectfully submitted,

                                      /s/ L.T. “Butch” Bradt
                                      L.T. “Butch” Bradt #02841600
                                      14015 Southwest Freeway, Suite 4
                                      Sugar Land, Texas 77478-3500
                                      (281) 201-0700
                                      Fax: (281) 201-1202
                                      ltbradt@flash.net

                                      Michael Mowla #24048680
                                      445 E. FM 1382 #3-718
                                      Cedar Hill, Texas 75104
                                      (972) 795-2401
                                      Fax: (972) 692-6636
                                      michael@mowlalaw.com

                                      Attorneys for Appellant,
                                      David Christopher Hesse


                      CERTIFICATE OF SERVICE

       I, the undersigned attorney, in accordance with the Rule 9.5, T.R.A.P.,
certify that a true and correct copy of the foregoing Brief was delivered to:

Gail Kikawa McConnell, Ass’t District Attorney
301 Jackson Street, Room 101
Richmond, TX 77469
Gail.McConnell@fortbendcountytx.gov

      On July 24, 2015.



                                      /s/ L.T. “Butch” Bradt
                                      L.T. “Butch” Bradt



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