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.

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