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State v. Houston

Court of Criminal Appeals of Tennessee, Nashville

June 26, 2017


          Assigned on Briefs April 19, 2017

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

         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

          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.

          Camille R. McMullen, J., delivered the opinion of the court, in which James Curwood Witt, Jr. and John Everett Williams, JJ., joined.



         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 email 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 investigator "was assured that [the Defendant] was aware of the ...

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