                                                                                        06/26/2017
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                          Assigned on Briefs April 19, 2017

                STATE OF TENNESSEE v. EBONY HOUSTON

                 Appeal from the Criminal Court for Wilson County
                     No. 16-CR-787     Brody N. Kane, Judge
                     ___________________________________

                           No. M2016-01649-CCA-R3-CD
                       ___________________________________

The Defendant, Ebony Houston, appeals the Wilson County Criminal Court’s finding of
criminal contempt for failure to appear at a show cause hearing. The Defendant argues,
and the State concedes, that the trial court violated her due process rights when it found
her in contempt without providing notice or an opportunity to prepare for the hearing.
Following our review, we reverse the Defendant’s conviction.

 Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Reversed,
                             Vacated, and Remanded

CAMILLE R. MCMULLEN, J., delivered the opinion of the court, in which JAMES
CURWOOD WITT, JR. and JOHN EVERETT WILLIAMS, JJ., joined.

M. Don Himmelberg, Nashville, Tennessee for the Defendant-Appellant, Ebony Houston.

Herbert H. Slatery III, Attorney General and Reporter; M. Todd Ridley, Assistant
Attorney General; Tom P. Thompson, Jr., District Attorney General; and Justin Harris,
Assistant District Attorney General, for the Appellee, State of Tennessee.

                                       OPINION

       On July 12, 2016, the State of Missouri filed an application in the Wilson County
Criminal Court requesting that the Defendant be ordered to appear as a witness in a
pending criminal matter in St. Louis County, Missouri. The application and attached
affidavit indicate that the Defendant was a necessary and material witness because she
had “worked at the time for Children’s Division and participated in the investigation of
allegations against [the Missouri defendant in the pending criminal matter].”
       The same day, the Wilson County Criminal Court issued an order directing the
Defendant to appear the following day, July 13, 2016, at 8:30 a.m., to “show cause[,] if
any[,] why she should not be ordered to appear as a witness” in St. Louis County. The
Defendant failed to appear at the July 13, 2016 show cause hearing. The trial court
issued an attachment directing the Wilson County Sheriff to arrest the Defendant and
hold her without bond “until which time a hearing is held.” The Defendant was arrested,
and a hearing was held on July 14, 2016.

       At the July 14, 2016 hearing, the Defendant, appearing pro se, was sworn-in as a
witness and extensively questioned by the trial court. The Defendant testified that she
had never seen the show cause order and that she “wasn’t served with anything.” She
said that, on July 12, 2016, she was informed by an attorney with the Tennessee
Department of Children’s Services (“DCS”) that the State of Missouri’s application had
not been filed in Tennessee and that her case was not on the docket. She also called the
Wilson County courts and confirmed that her case was not on the docket. The Defendant
also testified that, during this time, she was on temporary medical leave ordered by her
doctor and that both her supervisor and the DCS attorney were aware of her condition
and agreed to appear in court and inform her if she was added to the docket. On the day
of the show cause hearing, the Defendant received a text message from the same DCS
attorney informing her that she needed to be in court. However, the Defendant testified
that law enforcement was already at her house by the time she received the message.

       The State prosecutor testified that he had previously contacted the Defendant by e-
mail and asked the Defendant “to contact us immediately regarding a case out of St.
Louis County.” The prosecutor said that the Defendant responded on Sunday, July 10,
2016, that she would not be willing to travel to St. Louis County. The prosecutor then
proceeded to file the State of Missouri’s application on July 12, 2016, and had a State
investigator “go find [the Defendant].” The State investigator testified that he spoke with
several DCS attorneys, and that the last attorney he spoke with assured him that the
Defendant was going to be in court on July 13, 2016. The prosecutor also testified that
he faxed a copy of the show cause order to the DCS office or a DCS attorney.

       Upon more questioning by the trial court, the Defendant conceded that she was
aware she was supposed to be in court for the show cause hearing, but that she chose not
to appear based on her doctor’s orders. The Defendant said that she was never contacted
directly by the State investigator.

        The trial court concluded that the Defendant was in contempt for failing to appear.
In its order of contempt, the trial court stated that “[the Defendant’s] failure to appear,
despite her admitting actual notice of her [s]how [c]ause [o]rder, constitutes willful and
deliberate [c]ontempt of [c]ourt.” The trial court also stated that, because the State’s
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investigator “was assured that [the Defendant] was aware of the [s]how [c]ause [o]rder . .
. personal service was not necessary.” The Defendant now timely appeals.

                                       ANALYSIS

       On appeal, the Defendant argues that the trial court violated her due process rights
by finding her in contempt of court without providing her notice, an opportunity to be
heard, and a proper hearing pursuant to Tennessee Rule of Criminal Procedure 42. The
State concedes the issue.

       As an initial matter, we are compelled to note that our review is constrained by the
limited record provided on appeal. The record does not contain the judgment form or a
minute entry memorializing the trial court’s July 14, 2016 ruling. However, the trial
court did enter an order of contempt on October 28, 2016, nunc pro tunc July 14, 2016,
which will enable this court to consider this case.

       Tennessee courts are empowered “to issue attachments, and inflict punishments
for contempts of court” based upon “[t]he willful misbehavior of any person in the
presence of the court, or so near thereto as to obstruct the administration of justice” or
“[t]he willful disobedience or resistance of any officer of the such courts, party, juror,
witness, or any other person, to any lawful writ, process, order, rule, decree, or command
of such courts.” T.C.A. §§ 29-9-102(1), (3). Criminal contempt is a misdemeanor, and
as such is punishable by “fine or imprisonment, or both.” Id. § 29-9-103(a). However,
unless otherwise specified, fines may not exceed fifty dollars and imprisonment may not
exceed ten days. Id. § 29-9-103(b).

       “Rights of due process in the contempt context vary according to whether the
contempt is categorized as criminal or civil.” Bailey v. Crum, 183 S.W.3d 383, 387
(Tenn. Ct. App. 2005). The Tennessee Supreme Court has noted that “[c]ivil contempt is
remedial in character and is applied when a person refuses or fails to comply with a court
order.” Baker v. State, 417 S.W.3d 428, 436 (Tenn. 2013) (citing State v. Beeler, 387
S.W.3d 511, 520 (Tenn. 2012)). “A civil contempt action is brought to force compliance
with the order and thereby secure private rights established by the order.” Baker, 417
S.W.3d at 436 (citing Overnite Transp. Co. v. Teamsters Local Union No. 480, 172
S.W.3d 507, 510 (Tenn. 2005)). “Criminal contempt, by contrast, is designed ‘to
preserve the power and vindicate the dignity and authority of the law and the court as an
organ of society.’” Baker, 417 S.W.3d at 436 (quoting Beeler, 387 S.W.3d at 520).
Accordingly, “[s]anctions for criminal contempt are generally both punitive and
unconditional in nature, designed to punish past behavior, not to coerce directly
compliance with a court order or influence future behavior.” Baker, 417 S.W.3d at 436.

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       Criminal contempt is also categorized as either “direct” or “indirect.” See Tenn.
R. Crim. P. 42. “Direct contempt is based upon acts committed in the presence of the
court and may be punished summarily, whereas indirect contempt occurs outside the
presence of the court and requires notice and an opportunity to be heard.” Baker, 417
S.W.3d at 436, n.7 (citing Black v. Blount, 938 S.W.2d 394, 398 (Tenn. 1996)); see also
Tenn. R. Crim. P. 42(a). If the court finds the alleged contemnor to be in contempt after
the hearing, the court must enter an order setting the punishment. Tenn. R. Crim. P.
42(b)(5). Courts should rigorously adhere to these procedural safeguards because of the
unique due process considerations in criminal proceedings. State v. Christopher
Anderson, No. W2014-00219-CCA-R3-CD, 2015 WL 5278378, at *4 (Tenn. Crim. App.
Sept. 9, 2015) (citing State v. Turner, 914 S.W.2d 951, 957 (Tenn. Crim. App. 1995)).

       The Tennessee Court of Appeals has held that a willful failure to appear is not
subject to summary punishment as direct contempt. Bailey, 183 S.W.3d at 389. In
Bailey, the trial court found the defendant guilty of willful contempt when it witnessed
the defendant’s absence from a hearing; however, because the trial court did not witness
the defendant’s “willfulness,” the conduct constituted indirect contempt. Id. Therefore,
pursuant to Tennessee Rule of Criminal Procedure 42(b), notice and a hearing were
required. Id.; see also State v. Bradley Keith Cathey, No. M2016-00384-CCA-R3-CD,
2016 WL 4578832 (Tenn. Crim. App. Sept. 1, 2016) (finding that the trial court erred by
finding the defendant guilty of criminal contempt for failure to appear and by not
following the notice and hearing procedures of Rule 42(b)); see also Christopher
Anderson, 2015 WL 5278378 (finding that the trial court erred by finding a defendant
guilty of contempt for failure to appear without a hearing despite the trial court’s
knowledge of the defendant’s reason for missing his scheduled appearance); see also
State v. Charles B. Bryan, No. W1999-00620-CCA-R3-CD, 2000 WL 33288749 (Tenn.
Crim. App. June 27, 2000) (finding that the trial court erred by finding the defendant
guilty of contempt for willful failure to appear without a hearing pursuant to Rule 42(b)).
The record shows that the trial court relied solely on the defendant’s failure to appear at
the July 13, 2016 scheduled appearance in reaching its decision. Accordingly, this appeal
involves indirect criminal contempt.

        As previously noted, “‘trial courts may impose punishment for indirect criminal
contempt only after providing notice pursuant to Tenn. R. Crim. P. 42(b).’” Bailey, 183
S.W.3d at 388 (quoting Jones v. Jones, 01A01-9607-CV-00346, 1997 WL 80029, at *8
(Tenn. Ct. App. Feb. 26, 1997). Specifically, the notice provision of Rule 42(b) requires
the court to: (1) establish the time and place of the hearing; (2) allow the alleged
contemnor a reasonable amount of time to prepare a defense; and (3) state the essential
facts constituting the contempt charge and describe it as such. Tenn. R. Crim. P.
42(b)(1)(A)-(C). The notice must be given either orally in open court in the presence of
the alleged contemner or by written order. Tenn. R. Crim. P. 42(b)(2).
                                           -4-
       Here, the record shows that no notice was provided to the Defendant regarding her
contempt charge. Rather, the trial court immediately issued an attachment for the
Defendant’s arrest upon her failure to appear at the show cause hearing. While we
recognize the authority of trial courts to enforce their orders, like the instant show cause
order, “those goals must be achieved only through processes that comply with basic due
process as are set forth in Tenn. R. Crim. P. 42(b).” State v. Elder Mark Anthony
Thornton, No. M2011-02444-CCA-R3-CD, 2013 WL 322202, at *6 (Tenn. Crim. App.
Jan. 29, 2013) (finding that the trial court erred by failing to give proper notice of
criminal contempt charges). In this case, the trial court disregarded the basic due process
requirements of Rule 42(b) by failing to give the Defendant proper notice, and,
accordingly, “convictions based on conduct not properly charged cannot be sustained.”
Id. The Defendant’s conviction is therefore reversed and vacated.

                                     CONCLUSION

      Based on the foregoing authority and analysis, we reverse and vacate the
Defendant’s conviction and remand to the Wilson County Criminal Court for further
proceedings.

                                                     ______________________________
                                                     CAMILLE R. McMULLEN, JUDGE




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