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Romero v. State (5/27/2011) ap-2307

Romero v. State (5/27/2011) ap-2307

                                                NOTICE 
        The text of this opinion can be corrected before the opinion is published in the Pacific 
        Reporter.  Readers are encouraged to bring typographical or other formal errors to the 
        attention of the Clerk of the Appellate Courts. 

                                 303 K Street, Anchorage, Alaska  99501
 
                                          Fax:  (907) 264-0878
 
                           E-mail:  corrections @ appellate.courts.state.ak.us
 

               IN THE COURT OF APPEALS OF THE STATE OF ALASKA 

GEORGE M. ROMERO,                               ) 
                                                )         Court of Appeals No. A-10418 
                            Appellant,          )        Trial Court No. 3AN-07-614 CR 
                                                ) 
             v.                                 )                   O P I N I O N 
                                                ) 
STATE OF ALASKA,                                ) 
                                                )           No. 2307 - May 27, 2011 
                            Appellee.           ) 
                                                ) 

                Appeal     from    the  District    Court,   Third   Judicial   District, 
                Anchorage, Stephanie Rhoades, Judge. 

                Appearances:     Julia D. Moudy, Assistant Public Defender, and 
                Quinlan Steiner, Public Defender, Anchorage, for the Appellant. 
                Jonas M. Walker, Assistant District Attorney, Anchorage, and 
                Daniel S. Sullivan, Attorney General, Juneau, for the Appellee. 

                Before:     Coats,   Chief   Judge,   and   Mannheimer      and  Bolger, 
                Judges. 

                BOLGER, Judge.
 
                MANNHEIMER, Judge, concurring.
 

                George M. Romero was convicted of contempt of court for disobeying an 
order issued by the superior court.1       He had been appointed as the third-party custodian 

        1   AS 09.50.010(5); AS 12.80.010. 

----------------------- Page 2-----------------------

for a felon who was awaiting a probation revocation proceeding.            On appeal, Romero 

argues that the evidence was insufficient to support his conviction.         We agree that the 

State failed to prove that the superior court issued an order that was sufficiently clear and 

definite to support a conviction for criminal contempt. 

       Background 

               In November 2006, Superior Court Judge Larry D. Card approved Romero 

as a third-party custodian for Veronica Ashouwak.            Ashouwak was a convicted felon 

who was awaiting disposition of a petition to revoke her probation.           Her conduct while 

on probation had been poor and she was facing a fourth petition to revoke her probation. 

According to Judge Card, Ashouwak had "major problems with [controlled] substances." 

               At the bail hearing, the State objected to Ashouwak's release to Romero in 

part because Ashouwak's performance while under probation supervision was "best 

described as abysmal" and she needed the "highest level of in-patient substance abuse 

treatment    to  avoid  her  self-destructive   and  illegal   behavior."  Despite    the  State's 

objection, Judge Card approved Romero as Ashouwak's third-party custodian. 

               The written conditions of Ashouwak's release required her not to "be where 

alcohol is sold or consumed" and to have "no guns in [the] home."             But even though 

Judge Card ordered Ashouwak to avoid alcohol, he did not explicitly direct Romero to 

remove all alcohol from his residence. 

               A day or two after the bail hearing, Ashouwak's probation officer searched 

Romero's   residence   while   Ashouwak   was   there   and   found   alcohol.   Based   on   this 

evidence, the State charged Romero with violating the duties of a third-party custodian 

on the ground that he had not reported that Ashouwak had violated her conditions of 

release. 

                                              - 2 -                                         2307
 

----------------------- Page 3-----------------------

               The State later amended the information and added a second count charging 
Romero with criminal contempt for knowingly disobeying a lawful court order.2                The 

State subsequently dismissed the first count - the charge that Romero had violated his 

duty to report - and proceeded to trial on the contempt of court charge. 

               During a hearing prior to trial, the prosecutor told the trial judge, District 

Court Judge Stephanie Rhoades that the contempt charge was based on Judge Card's oral 

order that Romero must remove all alcohol from his residence.  The prosecutor repeated 

this assertion in his opening statement at trial before Judge Rhoades.  The State maintains 

this position in this appeal. 

        Discussion 

               Romero contends that Judge Card never ordered him to remove all alcohol 

from his residence.     The State argues that even though "Judge Card's order was not as 

clear as it could have been," Romero had to have known that he had been ordered to 

remove any alcohol from his residence before allowing Ashouwak to stay there.  To 

resolve this issue, we view the evidence in the light most favorable to upholding the 

jury's verdict, asking whether a fair-minded juror exercising reasonable judgment could 
conclude that the State met its burden of proving guilt beyond a reasonable doubt.3 

               At Romero's trial, the State presented the audio recording of Ashouwak's 

bail hearing.   At that hearing, the prosecutor, Ashouwak's defense attorney, and Judge 

        2  AS 09.50.010 provides:  "The following acts or omissions with respect to a court 

of justice or court proceedings are contempts of the authority of the court: ... (5) disobedience 
of a lawful judgment, order, or process of the court."  AS 12.80.010 provides that this statute 
applies in criminal proceedings. 

        3  Shorty v. State, 214 P.3d 374, 383-84 (Alaska App. 2009). 

                                              - 3 -                                         2307
 

----------------------- Page 4-----------------------

Card were concerned about Ashouwak's apparent inability to control her alcohol and 

cocaine abuse.   Ashouwak's defense attorney emphasized that Romero had experience 

as a third-party custodian for persons with chemical abuse issues, especially those with 

alcohol-related problems. 

               The defense attorney urged Judge Card to have faith that Romero would 

follow all duties imposed by the court. The attorney also told the court that Romero was 

helping to search for an in-patient treatment facility for Ashouwak.        And the attorney 

agreed that Romero would remove his firearms from his house. 

               The defense attorney then asked Romero if he would "also ... take out any 

drop of alcohol out of your house[.]"  To this, Romero replied, "Yes."  Judge Card then 

commented,   "I   don't   think   Mr.   Romero   drinks   either." Romero   responded,   "Very 

seldom," and Judge Card replied, "Okay." 

               After this exchange, Judge Card outlined Ashouwak's conditions of release: 

"No alcohol, no drugs, no violation of the law, follow conditions, including reporting to 

probation officer within 24 hours of release." Judge Card then entered written conditions 

of release ordering Ashouwak to "not ... consume alcohol or be where alcohol is sold or 

consumed." 

               Viewing this evidence in the light most favorable to the guilty verdict, we 

conclude that the State did not prove that Judge Card had ordered Romero to remove all 

alcohol from his residence.  To prove contempt for violating a court order, the State had 
to prove that Romero was aware of the requirements of a court order.4          That is, as part 

       4   See Cont'l Ins. Co. v. Bayless & Roberts, Inc., 548 P.2d 398, 407 (Alaska 1976); 

O'Brannon v. State, 812 P.2d 222, 228 (Alaska App. 1991); see also L.A.M. v. State, 547 
P.2d 827, 831 (Alaska 1976); Hutchison v. State, 27 P.3d 774, 780 (Alaska App. 2001). 

                                             - 4 -                                         2307 

----------------------- Page 5-----------------------

of proving that Romero had disobeyed a court order, the State had to prove that the court 
had entered an order specifically telling Romero what he was required to do.5 

                This   principle   was   recently   discussed   by   the   Texas   Court   of   Criminal 
Appeals in In re Davis.6     The Davis court explained that a person charged with contempt 

of court is entitled to procedural due process, including "full and complete notification."7 

Accordingly, "the order underlying a contempt judgment must set forth the terms of 

compliance in clear, specific, and unambiguous terms so that the person charged with 

obeying the order will readily know exactly what duties and obligations [have been] 
imposed upon [him or her]."8          The "question   of whether an order is enforceable by 

contempt depends on whether the order is definite and certain, and the focus is on the 
wording of the [order] itself."9      We agree with this discussion. 

                In this case, the State was required to prove that Judge Card issued an order 

requiring Romero to remove all alcohol from his residence. But Judge Card did not issue 

any definite order that Romero was required to do so.             So Romero did not have notice 

        5   See   Affatato   v.  Considine,   700  S.E.2d   717,   723  (Ga.   App.   2010)  (before   a 

defendant can be found in contempt for violating a court order, the order should inform him 
in definite terms of the duties imposed upon him; therefore, the command must be express 
rather than implied) (citations omitted). 

        6   305 S.W.3d 326 (Tex. App. 2010). 

        7   Id. at 330. 

        8   Id. at 330-31. 

        9   Id. at 331; see also United States v. Straub, 508 F.3d 1003, 1012 (11th Cir. 2007) 

(for purposes of contempt, "[a]n order meets the 'reasonable specificity' requirement only 
if it is a 'clear, definite, and unambiguous' order requiring the action in question") (citations 
omitted). 

                                                 - 5 -                                            2307
 

----------------------- Page 6-----------------------

that Judge Card had imposed this obligation.         In the absence of a specific court order, 

Romero was not guilty of criminal contempt. 

        Conclusion 

               Romero's   conviction   is   REVERSED.        The   district   court   shall   enter   a 

judgment of acquittal. 

                                              - 6 -                                         2307
 

----------------------- Page 7-----------------------

MANNHEIMER, Judge, concurring. 

                The defendant in this case, George Romero, agreed to be the third-party 

custodian of a felony probationer, Veronica Ashouwak, who was seeking bail release 

after   the   State   arrested   her   for   an   alleged   probation   violation. Romero   was   later 

convicted of contempt of court in connection with his duties as Ashouwak's third-party 

custodian - under the theory that he willfully violated an order issued by the judge who 

presided at Ashouwak's bail hearing and set her conditions of release. 

                When a person is prosecuted for contempt of court based on their alleged 

violation of a court order, the State must prove (1) that the court indeed issued an order, 

(2) that this order was directed to the defendant, and (3) that the order clearly specified 

what the defendant was required or forbidden to do. 

                From beginning to end (including the briefing and oral argument of this 

appeal), the proceedings against Romero have been characterized by fatal ambiguities 

concerning (1) what court order Romero was accused of violating, and (2) what conduct 

on Romero's part constituted a violation of that order. 

        The State's three theories of what court order Romero violated, and what 
        conduct constituted his act of contempt 

                At Romero's trial, the State's attorney argued that Romero violated a court 

order that was issued orally during the bail hearing in which Romero was approved as 

Veronica Ashouwak's third-party custodian.               At different times during the trial, the 

State's attorney pointed to two different portions of the bail hearing as being the place 

where the pertinent court order was issued. 

                                                 - 7 -                                            2307
 

----------------------- Page 8-----------------------

                At times, the prosecutor argued that the pertinent court order was issued 

while    Ashouwak's       attorney   was   questioning     Romero     concerning     his  fitness  and 

willingness to be Ashouwak's custodian.   Just prior to the following exchange between 

the defense attorney and Romero, the bail hearing judge had told Romero to remove all 

guns from his home before Ashouwak came to live there.                 Ashouwak's attorney then 

resumed his questioning of Romero: 

                       Ashouwak's   Attorney :       And   I   wanted   to   address   a 
                question that is obvious, but, you know, [we] probably just 
                need to make it [clear] for the record - is that, Mr. Romero, 
                you'd also be willing to take any drop of alcohol out of your 
                house also? 

                        Romero :     Yes. 

                       Ashouwak's       Attorney :    Okay.      I  think  that  that's 
                common sense. 

                        Bail Hearing Judge :  I don't think Mr. Romero drinks, 
                either. 

                        Romero :     Very seldom. 

                        Bail Hearing Judge :       Okay. 

                       Ashouwak's Attorney :        Okay.   And therefore, you - 
                I   mean,   what   we   have   with   Mr.   Romero   is   a   live   person 
                [who] can make sure that [Ms. Ashouwak] doesn't even go 
                into a liquor store. 

                        Bail Hearing Judge :       Okay.  Thank you. 

                       Ashouwak's Attorney :        Thank you. 

                                                - 8 -                                            2307
 

----------------------- Page 9-----------------------

                 For readers who may be at a loss to discern where, in this exchange, the bail 

hearing judge ordered Romero to do anything, here is the answer that was offered by the 

State's attorney at Romero's trial:         the prosecutor asserted that Romero agreed (under 

pain of contempt) to remove all alcoholic beverages from his home when he answered 

"Yes" to the question posed by Ashouwak's attorney, "You'd also be willing to take any 

drop of alcohol out of your house?" 

                 Here   is   the   pertinent   excerpt   of   the   prosecutor's   opening   statement   at 

Romero's trial: 

                         Prosecutor :     Mr. Romero, in order to get the judge to 
                 issue   that   order   [releasing   Veronica   Ashouwak   on   bail   to 
                 Romero's   custody],   raised   his   hand   and   said   "yes"   when 
                 Ms. Ashouwak's attorney [asked if] Mr. Romero was willing 
                 to   remove   every   drop   of   alcohol   from   his   house.    Now, 
                 Mr. Romero didn't say, "Yes, Your Honor, I'll do it if you 
                 tell   me   to." ...  He   said   "yes"   -   one   simple   word   that 
                 became part of a promise to obey an order that the judge then 
                 issued. 

In other words, the prosecutor argued that when Romero answered "yes" to the defense 

attorney's question, Romero was actually making an explicit promise to the bail hearing 

judge:  the promise to remove all alcoholic beverages from his house if the judge granted 

Ashouwak's request for bail release. 

                 According to the prosecutor, because Romero did not say, "I'll do this if the 

court orders me to", Romero waived his right to have the judge address him personally 

and explicitly order him to remove the alcoholic beverages from his house.                        Instead, 

Romero simply said "yes" - which, according to the prosecutor, meant that all the bail 

                                                   - 9 -                                              2307
 

----------------------- Page 10-----------------------

hearing judge had to do was order Ashouwak's release, and then Romero automatically 

became bound to comply with the defense attorney's suggestion. 

                Later in Romero's trial, the prosecutor offered a different theory of what 

court order Romero violated, and when that order was issued.  This time, the prosecutor 

did   not   rely   on   Romero's   answer   to   Ashouwak's   attorney's   question.       Instead,   the 

prosecutor relied on what the bail hearing judge said at the conclusion of Ashouwak's 

bail hearing. 

                As    the   bail  hearing    was    coming     to  an  end,   the   judge   announced: 

"Conditions of probation [sic:  bail release]:  No alcohol.  No drugs.   No violation of the 

law.   Follow conditions [of probation], including reporting to probation officer within 

24 hours of release."       The judge's statements appear   to constitute a series of orders 

addressed to Veronica Ashouwak - since she was the one who was being released on 

bail, and she was the one who was on probation.                However, according to the State's 

attorney, the judge was also ordering Romero to do these same things. 

                The prosecutor presented this second theory of Romero's culpability when 

the prosecutor responded to the defense attorney's request for a judgement of acquittal 

at the close of the State's case-in-chief.           As part of the prosecutor's response to the 

defense attorney's motion, the prosecutor attempted to clarify the State's theory of the 

case.  In doing so, the prosecutor identified this second theory of prosecution - a theory 

that   varied   substantially   from   the   theory   the   prosecutor   had   presented   earlier   in   his 

opening statement: 

                         Trial Judge:      What, specifically, is the ... oral order 
                that    you're    relying    on?    [Is    it  the]  portion    wherein 
                [Ashouwak's        attorney]    says,  "This   may    be  obvious,    but 
                you'd also be willing to take any drop of alcohol out of the 
                house?"     And [Mr. Romero] says, "Yes"? 

                                                 -  10 -                                            2307
 

----------------------- Page 11-----------------------

        Prosecutor : And then further, Your Honor, at the very 
end    [of  the  bail  hearing],    where    Judge   Card    says,  "No 
alcohol."    Simply orders "no alcohol".         He doesn't specify, 
"No alcohol to excess" - which is how it's written in the 
first part of the probation order.      He doesn't say, "Don't go 
into ... a place where alcohol is sold as the primary business", 
which is a special condition. 

        Trial Judge:      And to whom do you believe that order 
was addressed?      "No alcohol"?      ...   To whom do you believe 
Judge     Card    addressed     the   order,   "No    alcohol,    drugs, 
violations of law; follow conditions of probation?" 

        Prosecutor : Your Honor, the State's theory of the case 
is   that  [the  judge's   order]   was   [not  only]   directed   to  ... 
Ms.   Ashouwak,   but   [was]   also   directed   to   the   defendant, 
[Mr. Romero,] who had taken a long time to discuss the - 
his merits as someone who could keep [Ms. Ashouwak] away 
from alcohol ... .    You know, Your Honor, I certainly agree; 
I mean, there's no - you know, there is no written order 
where Judge Card says, "You ... 

        Trial Judge:  ...  My question for you is:  The [theory] 
that   you    are  saying    [justifies  Romero's      conviction     for 
contempt      of  court]   ...  is  that  Judge  Card    was   ordering 
Mr. Romero to have no alcohol, [no] drugs, [no] violations 
of law, and [to] follow conditions of probation? 

        Prosecutor :     That's correct, Your Honor. 

        Trial Judge:     He was ordering [Mr. Romero] to have 
no alcohol? 

        Prosecutor :    That's the State's theory, Your Honor. 

                                 -  11 -                                           2307
 

----------------------- Page 12-----------------------

                Although      the  trial  judge   ultimately    denied   Romero's      motion    for  a 

judgement of acquittal, the judge apparently did not think much of the prosecutor's 

second theory, because the trial judge adopted yet a third theory of prosecution when she 

denied the defense motion for a judgement of acquittal. 

                When the trial judge issued her ruling (denying Romero's motion for a 

judgement of acquittal), she never stated that the evidence was sufficient to establish that 

Romero violated a court order directing him to remove all alcoholic beverages from his 

house.  Rather, the judge allowed Romero's case to go to the jury under the theory that 

Romero violated his duty as a third-party custodian byfailing to report that Ashouwak 

violated the conditions of her bail release (purportedly, because Ashouwak was in the 

presence of alcoholic beverages while she was staying at Romero's house).   Here is the 

judge's ruling: 

                        Trial Judge:      While it is clear that the orders in this 
                case were certainly ... slovenly, the fact of the matter is that 
                Judge Card, out of his own mouth, did specifically say:  "No 
                alcohol; [no] drugs; [no] violations of law; follow conditions 
                of probation."    And as I look [at] ... Exhibit Number 4 [i.e., 
                the   written   order   detailing   Ashouwak's   conditions   of   bail 
                release],    it  [shows]    that   Mr.    Romero     [as   third-party 
                custodian] signed ... a statement that said: "A person commits 
                the crime of violation of the custodian's duty if the person 
                knowingly fails to immediately report that the person released 
                has violated a condition of release."        ...  "Your signature on 
                this notice means that you have ... read and fully understand 
                its content.   If you have questions, you should bring them to 
                the judge's attention before signing this notice." 

                        So while [Mr. Romero is] not actually accused of that 
                particular crime [i.e., not accused of violating his duty as a 

                                                -  12 -                                          2307
 

----------------------- Page 13-----------------------

                third-party custodian, AS 11.56.758], it does appear to me 
                that there is sufficient evidence that has been presented - 
                slim as it is - to send [this case] to the jury, upon which 
                reasonable minds could differ, as to whether there was a court 
                order that was issued [to Ms. Ashouwak] - "no alcohol, [no] 
                drugs" - that ... [required Mr. Romero] to, at the very least, 
                make an immediate report that alcohol was present or that the 
                defendant was in the presence of alcohol. 

                At the end of Romero's trial, the prosecutor's summation to the jury was 

an amalgam of all three different theories.  At one point in his summation, the prosecutor 

told the jurors that Romero was guilty of contempt because he violated the bail hearing 

judge's verbal order, "No alcohol".         At another point in his summation, the prosecutor 

suggested that Romero was guilty of contempt of court because he violated his duty as 

a third-party custodian to report that Ashouwak had access to alcohol in Romero's house: 

                        Prosecutor :  And if Ms. Ashouwak has alcohol in the 
                house, [Mr. Romero] has duties. He can call the police; he 
                can call the District Attorney's Office.  There's a lot of things 
                that Mr. Romero could have done to not be here today.  But 
                he    chose    to  have    alcohol   in   the  same    house    as   Ms. 
                Ashouwak, and that's why he - that's how he committed 
                this crime [of contempt of court]. 

Still later in his summation, the prosecutor told the jurors that Romero was guilty of 

contempt because he violated the promise he made, under questioning by Ashouwak's 

attorney, to rid his house of even a drop of alcohol: 

                        Prosecutor :     [Ms. Ashouwak's] attorney [said to the 
                bail   hearing   judge]:     "Oh,   by   the   way,   Your   Honor,   it's 
                obvious - it's obvious that [Mr. Romero is] going to do this. 
                But just for the record, let's just make it official:  he's willing 

                                                 -  13 -                                           2307
 

----------------------- Page 14-----------------------

                 to take any drop of alcohol out of his house."              And at that 
                 point, Mr. Romero leans in and says "Yes". One simple word 
                 - "yes" - [is what] this whole case rests on. 

                 These, then, were the three theories of contempt that the prosecutor argued 
to the jury at Romero's trial. 1 

                 In the present appeal, the State argued two of these theories in its brief to 

this Court.    The State's general contention was that Romero was placed under a court 

order to remove all alcoholic beverages from his house - but the State presented two 

different theories as to when this order was imposed on Romero. 

                 The State's first argument (found on page 10 of its brief) was that the court 

imposed      this  order    while   Romero      was    being   questioned     at  the   bail  hearing    by 

Ashouwak's attorney - when the defense attorney asked Romero if he would be willing 

to remove all alcohol from his house, and Romero answered "yes", and then the bail 

hearing     judge   remarked,     "I  don't   think   Mr.   Romero      drinks,   either",   and  Romero 

responded, "Very seldom", and then the bail hearing judge said, "Okay". 

                 The State's second argument (found on page 11 of its brief) was that the 

court ordered Romero to remove all alcoholic beverages from his house when, at the 

very end of the bail hearing, the judge said, "Conditions of probation [sic:   bail release]: 

No alcohol.     No drugs. No violation of the law." 

        1   I note that it was error to allow the jury to consider these different theories without 

requiring the jury to reach unanimous agreement as to whether Romero committed contempt (1) 
by failing to remove all alcoholic beverages from his house or, instead, (2) by failing to notify 
the authorities that Ashouwak was residing in a house that contained alcoholic beverages. These 
are   two   distinct   acts,   and   Romero   was   entitled   to   a   unanimous   jury   decision   regarding   the 
conduct that constituted his act of contempt.  See Covington v. State, 703 P.2d 436, 440 (Alaska 
App. 1985);  State v. Petrich, 683 P.2d 173, 176-77 (Wash. 1984) (later overruled on other 
grounds). 

                                                  -  14 -                                             2307
 

----------------------- Page 15-----------------------

                But at the oral argument in this case, the State expressly abandoned this 

second argument - the one based on the judge's statement, "No alcohol. No drugs". 

The State's attorney declared that the State's sole theory of prosecution was that, when 

the bail hearing judge said "Okay" while Ashouwak's attorney was questioning Romero 

about his willingness to remove all alcoholic beverages from his home, the judge's one- 

word interjection constituted a court order directing Romero to remove the alcoholic 

beverages from his home. 

        Why the State's argument must be rejected 

                The    first  obvious   problem     with   the  State's   current   argument    is  that 

Romero's case was submitted to the jury on three different theories - not only the 

State's current theory of liability, but also two other theories.           Even if we accepted the 

validity of the State's current theory, it appears that we would have to reverse Romero's 

conviction, because it is impossible to know which theory or theories the jurors relied 

on.  But there is a more fundamental flaw in the State's position. 

                As    I  noted   at  the  beginning    of  this  concurrence,     when    a  person   is 

prosecuted for contempt of court based on their alleged violation of a court order, the 

State must prove (1) that the court indeed issued an order, (2) that this order was directed 

to the defendant, and (3) that the order clearly specified what the defendant was required 

or forbidden to do. 

                A   person   can   not   be   convicted   of   contempt   of   court   when   reasonable 

persons would differ as to whether the purported underlying order was actually issued, 

or whether that order was directed to the defendant.  Moreover, even when it is clear that 

a court order was issued, and that this order was directed to the defendant, a person can 

                                                -  15 -                                           2307
 

----------------------- Page 16-----------------------

not be convicted of contempt of court for violating that order when reasonable persons 

would differ as to the meaning of that order (unless the evidence reveals, beyond a 

reasonable doubt, that the defendant understood the court's order to mean what   the 

government asserts). 

                 It is not enough for the jurors to reach their own after-the-fact conclusion 

about what the court order really required or prohibited, and then convict the defendant 

if the defendant's conduct deviated from the jurors' interpretation of the order.                        As 

explained by the Texas Court of Appeals, 

                         The order underlying a contempt judgment must set 
                 forth    the   terms    of  compliance       in  clear,   specific,   and 
                 unambiguous terms so that the person charged with obeying 
                 the   order    will   readily    know     exactly    what    duties   and 
                 obligations     are  imposed      upon   [them].      The   question    of 
                 whether   an   order   is   enforceable   by   contempt   depends   on 
                 whether the order is definite and certain, and the focus is on 
                 the   wording   of   the   judgment   itself.   If   the   court's   order 
                 requires inferences or conclusions about which reasonable 
                 persons might differ, it is insufficient to support a judgment 
                 of contempt. 

In re Davis, 305 S.W.3d 326, 330-31 (Tex. App. 2010) (citations omitted). 

                 At various times during its prosecution of Romero, the State has identified 

three   different   "orders"   as   forming   the   basis   for   the   prosecution   -   three   different 

statements made by the judge at Ashouwak's bail hearing.                     Now, following the oral 

argument of this appeal, the State has confined itself to the theory that the "order" in 

question   was   the   judge's   one-word   interjection,   "Okay",   while   Romero   was   being 

questioned by Ashouwak's attorney. 

                                                  -  16 -                                             2307
 

----------------------- Page 17-----------------------

                My colleagues and I agree that reasonable people would necessarily differ 

as to whether the judge's utterance of this single word was an order at all. 

                It is fundamentally unfair to subject people to imprisonment (or even the 

hardship of a criminal trial) based on an after-the-fact characterization of an aside or 

other stray remark made by a judge during a court proceeding.                  If a judge intends to 

direct someone to engage in specified conduct, or to refrain from specified conduct, the 

judge must clearly articulate that what they are saying  is an order, and that this order is 

directed to a particular person or group of persons. 

                In Romero's case, the bail hearing judge uttered the word "okay" twice: 

                        Ashouwak's   Attorney :       And   I   wanted   to   address   a 
                question that is obvious, but, you know, [we] probably just 
                need to make it [clear] for the record - is that, Mr. Romero, 
                you'd also be willing to take any drop of alcohol out of your 
                house also? 

                        Romero :     Yes. 

                        Ashouwak's       Attorney :    Okay.     I   think   that  that's 
                common sense. 

                        Bail Hearing Judge :  I don't think Mr. Romero drinks, 
                either. 

                        Romero :     Very seldom. 

                        Bail Hearing Judge :        Okay. 

                        Ashouwak's Attorney :        Okay.    And therefore, you - 
                I   mean,   what   we   have   with   Mr.   Romero   is   a   live   person 
                [who] can make sure that [Ms. Ashouwak] doesn't even go 
                into a liquor store. 

                                                 -  17 -                                           2307
 

----------------------- Page 18-----------------------

                      Bail Hearing Judge :      Okay.  Thank you. 

                      Ashouwak's Attorney :       Thank you. 

               The first time that the judge said "okay", it appears that the judge may 

merely   have   been   acknowledging   Romero's   statement   that   he   "very   seldom"   drank 

alcoholic beverages. Or the judge may have been indicating that it was all right with him 

if Romero confined himself to occasional drinking.   The second time that the judge said 

"okay", it appears that the judge may merely have been acknowledging that Ashouwak's 

attorney had reached the conclusion of his presentation.         Or the judge may have been 

indicating that he believed it was a good thing that Romero would supervise Ashouwak 

to make sure that she did not go into any liquor stores. 

               If the system of third-party custodianship is going to function - if ordinary 

citizens are to remain willing to come forward and volunteer their services in supervising 

people who stand accused of a crime - then it is imperative that these citizens be clearly 

informed of the obligations they are taking on.        The system will not work if third-party 

custodians risk criminal prosecution based on every ambiguous or off-hand remark made 

by the judge during the bail hearing. 

               The meaning of the bail hearing   judge's remark - his intent when he 

uttered the word "Okay" - is not clear and unambiguous.             Reasonable people would 

necessarily differ as to whether this remark constituted an order at all.        Consequently, 

reasonable people would necessarily differ as to whether Romero committed contempt 

of court. 

               The prosecution of Romero for contempt of court was predicated on taking 

this off-hand, ambiguous judicial remark and interpreting it, after-the-fact, in the manner 

                                             -  18 -                                        2307
 

----------------------- Page 19-----------------------

most unfavorable to Romero.       My colleagues and I agree that this is unlawful, and that 

Romero's conviction must be reversed. 

                                            -  19 -                                      2307
 
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