Font Size: 
Bail Granted to Lawyer Sentenced to 90 Days for Obscene Gesture
Court of Criminal Appeals grants person recognizance bond
Texas Lawyer
April 17, 2008
An Austin, Texas, criminal defense attorney sentenced to 90 days in the Travis County Jail for contempt of court because he made an obscene gesture while appearing before a judge last month spent only a few hours behind bars Wednesday.
The Court of Criminal Appeals granted Adam Reposa a person recognizance bond, freeing him from jail pending his application for a writ of habeas corpus. The CCA acted on a motion that Austin solos Karyl Krug and Todd Dudley filed on Reposa's behalf.
Senior Judge Paul Davis, sitting by assignment, sentenced the 33-year-old Reposa to 90 days after hearing arguments Wednesday morning. The CCA granted Reposa's motion for bail late in the afternoon of the same day.
Reposa -- who identifies himself as Adam "Bulletproof" Reposa on the State Bar of Texas Web site -- was found in contempt at the conclusion of a more than four-hour trial Tuesday.
"It's fair," a somber Reposa said after a deputy sheriff handcuffed him and led him to an elevator to begin the short trip to the jail.
Under Texas Government Code §21.002, Davis could have sentenced Reposa to up to 180 days in jail and/or fined him up to $500.
County Court-at-Law No. 6 Judge Jan Breland held Reposa in criminal contempt March 11 for making "a simulated masturbatory gesture with his hand while making eye contact with the Court," according to the judgment signed by Breland. As noted in the judgment, Travis County prosecutors made the motion to hold Reposa in contempt for his "intentional and contumacious conduct" while Breland was reviewing a plea bargain offer to Reposa's client, who was charged with driving while intoxicated.
On March 11, Breland ordered Travis County sheriff's deputies to hold Reposa in the county jail until a hearing before her the following day. But 299th District Judge Charlie Baird signed an order later the same day that released Reposa on a personal bond.
Government Code §21.002 provides that an officer of the court who is held in contempt and seeks release on his personal recognizance is entitled to a hearing before an independent judge. B.B. Schraub, presiding judge of the 2nd Judicial Administrative Region, assigned Davis, former judge of the 200th District Court in Austin, to hear the contempt case.
Breland, who has served on the court-at-law bench since 1999, testified Tuesday that she had not previously held a lawyer in contempt.
"I'm not the strictest teacher in the schoolhouse, but there's a line," Breland testified.
Breland testified that the incident that led her to finding Reposa in contempt occurred after she asked Bill Swain, an assistant county attorney, to state for the record the plea offer that prosecutors were offering Reposa's client. According to Breland's testimony, Swain stated on the record that Reposa was whispering in his client's ear while Swain was talking.
Reposa, who was standing with his client a few feet from the judge, held his right hand "in sort of a fist" a few inches from his waist and moved his hand quickly up and down, Breland testified.
"To the best of my knowledge, that is simulated masturbation," Breland said. "It's something boys do to insult one another. ... Under no circumstances should that ever happen in a courtroom."
"Obviously, a simulated masturbatory gesture is a good way to describe it," Reposa said during his testimony Tuesday. However, Reposa said he did not make the gesture at Breland but at Swain.
When asked by Randy Leavitt, first assistant Travis County attorney, if he thought the gesture was contempt, Reposa jumped up from the witness chair. "I think there's a huge difference between this," Reposa said as he made the masturbatory gesture down by his crotch, "and this," he said while making the same gesture off to the side.
Reposa testified that he was concerned because his client, who had been incarcerated since November 2007, wanted to take the plea to get out of jail.
"Once a client has convinced me that they are factually not guilty, I have a responsibility," Reposa testified as he explained why he had been whispering in the client's ear while the prosecutor was discussing the plea offer. Breland appointed a new lawyer to represent the client after holding Reposa in contempt. The client's case is still pending.
Reposa testified that he was sorry for making the gesture in Breland's court. "I did lose my cool," he testified. "I think people have a right to expect more of me than that."
During arguments at the punishment phase of the contempt trial, Leavitt noted that Reposa had written in an apology letter to Breland that what he did was a childish act.
"In dealing with an adult who's acting like a kid, time out may be appropriate," Leavitt said. For an adult, he said, time out may be in the Travis County Jail.
Chris Garcia, Reposa's defense attorney and a partner in Austin's Garcia & True, said no one has a right to go into court and do what Reposa did. "We're here because of what you did, period," Garcia told his client during the arguments.
However, Garcia said Breland had wanted Reposa to spend a night in jail and urged Davis to make a one-night jail stay the punishment.
Immediately before he announced the sentence, Davis told Reposa that his testimony indicated that he didn't think anything needed to be done to ensure there is no repeat of what happened in Breland's court. After sentencing Reposa, Davis said, "I think it's about the reality of the court sending you a message that what you did was wrong."
