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Sentenced to 90 days in jail for contempt of court because he made an obscene gesture in front of a judge, an Austin, Texas, criminal defense attorney has told the Texas Court of Criminal Appeals that the sentence is excessive. Solo Adam Reposa also argues in his June 2 habeas corpus writ application filed with the CCA that the prosecution introduced evidence of alleged extraneous conduct to draw the attention of the State Bar of Texas to Reposa. “[T]his was not a contempt proceeding at all … it was a preliminary disbarment proceeding disguised as a contempt hearing,” Reposa alleges in the writ application in Ex Parte Adam Reposa. Reposa also alleges that the prosecution at his April criminal contempt hearing elicited testimony about a Whoopsy! magazine illustration that features a photo of a man and a woman having sex; a photo of Reposa’s face as a child is pasted over the man’s face. “This entire line of questioning was irrelevant to the contempt, but it later became clear that this line of questioning was relevant to the State’s efforts to complain to the State Bar about Mr. Reposa,” Reposa writes in a footnote to his writ application. Randy Leavitt, first assistant in the Travis County Attorney’s Office who prosecuted Reposa, says the allegation is absolutely false. “I had no contact with the State Bar about him at all,” Leavitt says of Reposa. Senior Judge Paul Davis, sitting by assignment, presided over Reposa’s April 15 trial. Travis County Court-at-Law No. 6 Judge Jan Breland testified at the trial that Reposa made a gesture simulating masturbation at a prosecutor while standing before Breland with a client and while making eye contact with the judge during a March hearing. The prosecutor at the March 11 hearing made a motion for Breland to hold Reposa in contempt for making the obscene gesture in court. As a result, Breland entered a judgment of criminal contempt against Reposa on March 11 and ordered Travis County deputies to hold him in the county jail. Reposa alleges in his writ application that he was denied due process and due course of law, because he did not receive unambiguous notice before trial of what the state would have to show to prove him guilty of contempt. Reposa alleges in the writ application that at the April 15 hearing before Davis he attempted to quash the charging instrument, because there was no show-cause order and because the instrument was at odds with the judgment of contempt. But Davis substituted Breland’s judgment of contempt for the charging instrument. In the writ application, Reposa argues that it was not clear what the state had to show to prove him guilty of contempt, “whether it was the gesture in isolation, a gesture made toward the prosecution, a gesture made toward the judge, the purpose or effect of the gesture, or any or all of the above in some combination.” Leavitt says he had filed an official notice of the contempt proceedings that provided more specific details to what the prosecution was alleging than appeared in Breland’s contempt judgment. Leavitt says Davis decided to proceed with the trial based on the contempt judgment. But Leavitt says Reposa “had sufficient notice in the judgment of contempt of the action we were complaining of.” DOUBLE ENTENDRE Reposa further alleges in his writ application that he was denied due process and due course of law when “Judge Davis declined to follow criminal procedure in ascertaining applicant’s guilt,” allowing the state to introduce evidence of extraneous conduct by Reposa. That included the introduction of Whoopsy!, a magazine distributed in Austin clubs that published “an apparently satirical ‘ad’ for an attorney identified as ‘Bulletproof, the DWI Stud.’ ” Reposa has identified himself as Adam “Bulletproof” Reposa on the State Bar of Texas Web site. The text of the “ad “/parody reads:

Check out Austin’s hottest DWI TAPES from cases where people were found NOT GUILTY. There are lots of DWI LAWYERS in town, but how many TAPES do they have? Who can put it down in the courtroom, and make them take it like he wants? BULLETPROOF, THE DWI STUD That’s who. … You’d be a fool not to check out this man’s body of work. Watch him perform and then, you decide who you want.

Reposa says in an interview that although the publisher of Whoopsy! is “an old buddy” of his, the magazine material at issue is not an advertisement and he had nothing to do with it. “It’s just some form of humor,” Reposa says. Austin solo Karyl Krug, one of the attorneys representing Reposa in his writ application, says Leavitt introduced the Whoopsy! material while Reposa was testifying at the March 15 hearing. Leavitt says he introduced the Whoopsy! material as evidence, because he thought it was indicative of Reposa’s lack of respect for the law and the court system. “This case is absolutely unique on its facts and in terms of how it was handled,” Krug says. Krug says she has been unable to find another contempt case in which matters that do not touch on the lawyer’s contempt have been raised. She says her research also failed to turn up any other case in which a lawyer found in contempt has received such a lengthy sentence. Included in Reposa’s writ application is a copy of a letter dated April 16 — the same day Davis sentenced Reposa — from the State Bar’s Advertising Review Committee seeking a $300 fine and fee, because Reposa failed to submit the “ad” for the committee’s review. The letter signed by Gene Major, director of the State Bar’s advertising review department, notes that the committee can report to “the appropriate grievance committee” any lawyer whom it finds has disseminated an ad or writing that violates any part of Part 7 of the Texas Disciplinary Rules of Professional Conduct. Kim Davey, a spokeswoman for the State Bar, says Betty Blackwell, chairwoman of the Commission for Lawyer Discipline, submitted the Whoopsy! material to the Advertising Review Committee for review. “It’s working through the process,” Davey says of the review. Blackwell, of the Law Office of Betty Blackwell in Austin, did not return two telephone calls seeking comment before presstime on June 5. As of presstime, Major was ill and unavailable for comment, Davey says. In a May 7 letter to Major, also included in the writ application, James M. McCormack, who represents Reposa before the Bar, points out that the parody does not mention Reposa’s name, address or any other identifying information. “If one was acquainted with Mr. Reposa when he was 11 years old, then they might connect this parody with him, but otherwise, no casual reader would regard this parody as an advertisement for a specific lawyer,” McCormack, a partner in Austin’s Tomblin Carnes McCormack, writes in the letter to Major. McCormack, a former State Bar general counsel and chief disciplinary counsel, says in an interview that he does not think the material in Whoopsy! is an advertisement. “At least, it’s not an advertisement by Mr. Reposa,” he says. “It’s not an ad,” says Chad Holt, Whoopsy!‘s publisher, adding that Reposa told him he could not advertise in Whoopsy! Holt says Reposa and another lawyer are his friends. Referring to the material in question, Holt says, “This was my way of associating with them, whether they wanted to or not.” Holt says Reposa and other attorneys won’t advertise in Whoopsy!, because they fear the State Bar could initiate disciplinary action against them. So Holt decided to spoof Austin lawyers’ television advertisements. The back cover of the January 2007 issue of Whoopsy! features parodies spoofing seven lawyers, two of which appear to refer to Blackwell and Reposa, with vulgar or insulting names given to both. Holt says the parodies were just his way of “making fun of local lawyers’ advertisements.”

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