WR-91,434-01

COURT OF CRIMINAL APPEALS

AUSTIN, TEXAS
Transmitted 7/13/2020 11:00 AM
Accepted 7/14/2020 2:08 PM
DEANA WILLIAMSON
NO.WR-_ _ __ CLERK

RECEIVED
COURT OF CRIMINAL APPEALS
IN THE 7/14/2020
COURT OF CRIMINAL APPEALS DEANA WILLIAMSON, CLERK

AT AUSTIN, TEXAS

EX PARTE WAYNE DOLCEFINO, APPLICANT.

FROM COUNTY CRIMINAL COURT AT LAW NO. 16

OF HARRIS COUNTY, TEXAS
ANCILLARY TO CAUSE NO. 2316965

APPLICANT'S MOTION FOR LEAVE TO FILE HIS ORIGINAL

APPLICATION FOR PETITION FOR WRIT OF HABEAS CORPUS
AND TO BE RELEASED ON BOND

TO THE JUDGES OF THE COURT OF CRIMINAL APPEALS:

Wayne Dolcefino ("Applicant"), by undersigned counsel, Brian Wice

and Dan Cogdell, and pursuant to Tex. R. App. P. 72.1, and Tex. Const.

art. V, sec. 5(c), files this Motion ["Motion"] for Leave to File His Original

Application for Petition for Writ of Habeas Corpus ["Petition"] challenging

the actions of Judge Darrell Jordan, Presiding Judge of Harris County

Criminal Court at Law No. 16 ("Respondent") adjudging Applicant guilty

of direct criminal contempt and committing him to the Harris County Jail.

for three days on June 30, 2020 ("Commitment Order"), be released on

bond, and in support thereof will show this Court the following:

1
 1. Concomitantly with the filing of this Motion, Applicant is filing

with the Clerk of this Court his Original Application for Petition for Writ

of Habeas Corpus. This Petition is incorporated by reference in this

Motion for all intents and purposes, as though set forth herein verbatim.

2. Applicant was adjudged guilty of direct criminal contempt by

Respondent on June 30, 2020, and ordered to serve 180 days in the Harris

County Jail, probated for six months, and a term of three days in the

Harris County Jail as a condition of probation. 1

3. Applicant is a nationally recognized, award-winning investigative

journalist and owner of Dolcefino Consulting, who spent almost 25 years

at Houston ABC-affiliate KTRK, where he was the most accomplished and

feared investigative television reporter of his day. 2 Applicant's reports

resulted in the indictment and conviction against several Houston-area

public officials for public corruption including a former Harris County

Commissioner and two former Harris County Constables. 3

1
Tab 2.
2
Tab 15. See also ,vvvw.dolcefino.com (last visited July 6, 2020); David Barron, "Wayne
Dolcefino ready for his second act," \vww.houstonchronicle.com, Dec, 18, 2012 (last visited July
6, 2020).
3
Id

2
 4. According to Applicant's physician, Applicant, age 63, suffers from

a "multitude problems" including:

• peripheral neuropathy due to his longstanding diabetes;

• chronic central nervous system process in the family of multiple

sclerosis;

• head trauma from a 75-mile-per-hour head-on collision shattering

his heel in an external fracture;

• severe pain in both of his feet and ankles that creates a high risk of
developing infections in these areas and ultimate loss of his limbs. 4

5. This Petition presents issues of great importance to Applicant

and the jurisprudence of Texas including:

• whether the findings of fact in Respondent's Commitment Order fail

to sustain his finding of direct criminal contempt beyond a
reasonable doubt, especially in light of a videotape of events in real
time;

• whether Respondent's conduct presenting Applicant and his counsel

the Robson's Choice of either acquiescing to Respondent's show of
lawful authority that counsel file a legally invalid notice of appeal
before Respondent would set an unauthorized appeal bond 5 or
seeking a valid bond in this Court, 6 a seemingly retaliatory gesture,

4
Tab 14.
5
See e.g., Ex parte Eureste, 725 S.W.2d 214, 216 (Tex.Crim.App. 1986)("There is no
remedy or right of appeal from an order of contempt. Thus, there can be no valid appeal bond in
such situations.").
6
See id. ("The proper course ofreview from a contempt order ... is by original application
for writ of habeas corpus.").
,.,
.)
 deprives this Court of jurisdiction to hear this original matter;

• whether Respondent's assessment of conditions on his "appeal" bond

that are not reasonably related to securing Applicant's appearance 7
constitute a clear abuse of discretion.

• whether Respondent's finding of direct contempt was animated by

Applicant exercising his First Amendment right to seek answers
from an elected public official about his decision to appoint two
inexperienced and apparently indolent lawyers as attorneys pro tern
to investigate four complaints of criminality involving public officials
brought by Applicant.

6. Because he is at liberty on an unauthorized bond, this Court could

deny leave to file Applicant's Petition. 8 Two factors obviate this potential

infirmity: (1) Applicant has filed a motion in the court of appeals to

dismiss his unauthorized notice of appeal instanter, 9 and (2) trial counsel's

affidavit 10 reveals his decision to secure his at-risk 11 client's release from

7
Valenciana v. State, 720 S.W.2d 523, 524 (Tex.Crim.App. 1986)("The fountain head of
constitutionality of bail conditions is that they be based upon standards relevant to the purpose of
assuring the presence of [the] defendant.).
8
See Ex parte Eureste, 725 S. W.2d at 216 (dismissing original application for writ of habeas
corpus because applicant was "not under restraint under the contempt order attacked in his habeas
application nor by the invalid bond entered into in the district court.").
9
Tab 21. Once this motion is granted, his unauthorized bond will have no force or effect
as it is necessarily a creature of, and authorized by, the unauthorized notice of appeal.
10
Tab 13 (affidavit of Cordt Akers, Applicant's trial counsel).
11
See \Vvvw.cdc.gov (detailing how those individuals over age 60 and those with pre-existing
medical conditions are infinitely more at risk for contracting and potentially dying from COVID-
19)(1ast visited July 6, 2020).

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the Petri dish of COVID-19 infections at the Harris County Jail 12 on an

unauthorized bond in lieu of seeking his release from this Court on an

authorized bond was the antithesis of a free and voluntary choice on trial

counsel's part. The most extraordinary conditions 13 driving trial counsel's

decision distinguish this matter from Eureste. In Eureste, the applicant's

decision to seek release on an unauthorized appeal bond was freely and

voluntarily made. 14 The applicant in Eureste never alerted this Court he

was at large on this unauthorized bond, a critical fact this Court did not

learn until oral argument after it filed and set the matter. 15 By contrast,

trial counsel's affidavit makes it clear he was on the horns of a dilemma

seeking his high-risk client's release from jail on an unauthorized bond.

Given Respondent's insistence on jailing Applicant for an indeterminate

12
Gabrielle Banks and St. John Barned-Smith, "Locked inside: a COVID-19 outbreak at
Harris County Jail was the 'nightmare scenario.' Then it actually happened."
www.houstonchronicle.com (last visited July 6, 2020).
13
As one judge on the Fifth Circuit Court of Appeals has so succinctly stated in this regard,
"These are difficult times. Many have suffered enormous loss. Many worry about what is coming
next." Texas Democratic Party v. Abbott, 961 F.3d 389,413 (5 th Cir. 2020)(Ho, J., concurring).
14
Ex parte Eureste, 725 S. W.2d at 215 ("No request was made [by applicant] to be released
on a habeas corpus bond ... ").
15
Id. ("[N]o mention was made that [applicant] was now on 'bond.' The pleadings left the
impression that applicant was still in jail.").

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time unless trial counsel submitted to Respondent's demand, his consent

was the antithesis of a decision freely and voluntary made, and was mere

acquiescence to a claim of lawful authority. 16 Unlike Eureste, Applicant

has clearly shown his entitlement to an authorized bond in lieu of his

unauthorized bond vesting this Court with its original jurisdiction. 17

7. Any residual doubt this Court has about whether Applicant's

release on the unauthorized bond Respondent set must be excused is

vitiated by the spirit and tenor of the "necessity" defense that mandates:

Conduct is justified if: (1) the actor reasonable believes the

conduct is immediately necessary to avoid imminent harm; (2)
the desirability and urgency of avoiding the harm clearly
outweigh, according to ordinary standards of reasonableness,
the harm sought to be prevented by the law proscribing the
conduct; and (3) a legislative purpose to exclude the
justification claimed for the conduct does not otherwise plainly
appear. 18

While obviously not a perfect fit - trial counsel, after all, was not

faced with violating a criminal statute, only a rule of procedure governing

16
Bumper v. North Carolina, 391 U.S. 543, 548 (1968); Flores v. State, 172 S.W.3d 742,
749 (Tex.App.- Houston [14th Dist.] 2005, no pet.).
17
See Exparte Reposa, 541 S.W.3d 186, 192 (Tex.Crim.App. 2017)(Alcala, J.,joined by
Richardson and Newell, JJ., dissenting)("This Court thus has authority to release on bond an
individual such as applicant who has been held in contempt of court during the pendency of his
original habeas proceedings challenging that judgment.")(citations omitted).
18
Tex. Penal Code, sec. 9.22.

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his duty to seek an authorized bond in this Court - the desirability and

urgency of avoiding the harm in having Respondent continue to commit

Applicant to the medieval, COVID-19-ridden conditions in the Harris

County Jail clearly outweighed the "harm" the law sought to prevent by

requiring trial counsel to seek an authorized bond in this Court. Whether

Applicant is entitled to the relief this Court would have been obligated to

provide him by way of his release on an authorized bond had Respondent

not persisted in his unreasonable and unlawful demand is at once clear.

Applicant asks no more than that this Court afford him that relief now.

8. Moreover, while Applicant is not confined, he is restrained 19 of his

liberty as a result of Respondent's Commitment Order because the terms

and conditions of his "appeal bond" have caused him to labor under

restraint that "precludes [his] absolute and perfect freedom of action," 20

and because "the restraints on his liberty [are] severe and immediate." 21

9. The law does not require doing a useless act to avoid forfeiture of

19
Art. 11.22, TEX. CODE CRIM. PROC. defines "restraint" as "the kind of control which one
person exercises over another, not to confine him within certain limits, but to subject him to the
general authority and power of the person claiming such right." Ex parte Ormsby, 676 S.W.2d 130,
132 n. 4 (Tex.Crim.App. 1984).
20
Ex parte Casillas, 25 S.W.3d 296,297 n. 1 (Tex.App.- San Antonio, 2000, orig. proc.).
21
Ex parte Trillo, 540 S.W.2d 728, 731 (Tex.Crim.App. 1976).

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a claim. 22 It is also true the law did not require the doing an act requiring

Applicant to subject himself to additional confinement when his three-day

sentence for direct contempt could have easily become - and might yet be

a death sentence - to avoid forfeiture of the claim set out in his Petition.

10. This Court's legacy is steeped in its deeply-felt belief that as

Texas's criminal court of last resort, it has "an independent interest in

ensuring ... that legal proceedings appear fair to all who observe them." 23

For the underlying legal proceeding to be fair, it must appear to be fair,

a scenario that is impossible unless this Court holds that the substance of

Applicant's contention that he was wrongfully convicted of direct contempt

trumps the inconsequential and insignificant form of the unauthorized

bond Respondent insisted on setting before he would permit Applicant's

release from the COVID-19-ridden Petri Dish of the Harris County Jail.

11. Applicant asks this Court to vacate the unauthorized bond he

was compelled to accept, issue a personal recognizance bond in its stead,

or in the alternative, a $100 cash bond to secure his authorized release

pending this Court's determination of his Petition.

22
Saenz v. State, 474 S.W.3d 47, 52 n. 3 (Tex.App.- Houston [14th Dist.] 2015, no pet.).
23
Bowen v. Carnes, 343 S.W.3d 805, 816 (Tex.Crim.App. 2011).

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 Applicant prays that this motion be granted and this Court grant

leave to file the attached Original Petition for Writ of Habeas Corpus, and

to set a bond securing his authorized release.

RESPECTFULLY SUBMITTED,

/s/ BRIAN W. WICE

BRIAN WICE - LEAD COUNSEL

Bar No. 21417800
440 Louisiana Suite 900
Houston, Texas 77002
(713) 524-9922 PHONE
[email protected]

DAN COGDELL
Bar No. 04501500
402 Main Fourth Floor
Houston, Texas 77002
(713) 426-2244 PHONE
dan@cogdell-law .corn

COUNSEL FOR APPLICANT

WAYNE DOLCEFINO

CERTIFICATE OF SERVICE

Pursuant to Tex. R. App. P. 9.5(d), I certify that this document was

served on all counsel of record via electronic filing on July 13, 2020.

/s/ BRIAN W. WICE

BRIAN W. WICE