Ex parte Brown
| Decision Date | 16 November 1978 |
| Docket Number | No. 6002,6002 |
| Citation | 574 S.W.2d 618 |
| Parties | Ex parte Joe Lloyd BROWN, Relator. |
| Court | Texas Court of Appeals |
This is an original habeas corpus proceeding brought pursuant to Article 1824a VATS, in which Relator Joe Lloyd Brown, seeks release from the custody of the Sheriff of Johnson County.
Relator Joe Lloyd Brown and Patricia Brown were divorced August 4, 1976 in the District Court of Johnson County. The decree required relator to pay $200. child support for the parties' minor child, and permanently enjoined the parties "from doing any act to harass or embarrass the other party, and further enjoining any unreasonable physical or nonphysical contact between the parties".
On July 28, 1978 Patricia Brown filed "Motion to Modify and Petition for Contempt" in which she sought increase of child support from relator to $300. per month; alleged relator was in arrears on his child support; and further alleged that on January 13, 1978 relator "ran (her) off of a highway and later on the same day * * * physically broke into (her) home in Richardson, Texas, and physically abused (her) to the extent (she) was hospitalized; and that (Relator) had wilfully disobeyed the orders of the court".
The trial court after hearing rendered judgment on October 12, 1978 which:
1) decreed relator in contempt for failing to make child support payments ordered in the August 4, 1976 decree and fixed punishment at confinement in the Johnson County jail until he purged such contempt by paying: a) arrearage of $1075.; b) $250. attorney's fees; c) $68. court costs of the proceeding.
2) decreed relator in contempt "for deliberately causing his automobile to come into collision on January 13, 1978 with the automobile being driven by Patricia Brown and for deliberately causing on January 13, 1978 an unreasonable physical contact between the parties, both in wilful disobedience of the order of * * * August 4, 1976; and that punishment therefor be fixed * * * at confinement in the jail of Johnson County, Texas for a period of 15 days".
Relator has paid the $1075. child support arrearage; the $250. attorney's fee and the $68. court costs.
Relator after serving 4 days in jail, filed application for Writ of Habeas Corpus in this Court alleging that he is illegally restrained of his liberty by virtue of the October 12, 1978 decree. Relator alleged he had paid the child support, attorney's fees and costs; that punishment for the physical contact with Patricia Brown on January 13, 1978 was in violation of the prohibition against double jeopardy of the Fifth and Fourteenth Amendments of the U.S. Constitution and Article 1, Section 14 of the Texas Constitution, as he had been tried for the identical physical contact offense, was found guilty, and assessed a fine of $150. and 30 days in jail; and that the October 12, 1978 decree was void.
This Court issued the Writ of Habeas Corpus, ordered relator released on bond, and set hearing for October 23, 1978.
On November 3, 1978 respondent filed supplemental transcript in this Court reflecting that on October 24, 1978 Patricia Brown filed a motion in the District Court of Johnson County for entry of Judgment Nunc Pro Tunc pursuant to Rule 316 TRCP. The trial court after hearing such motion entered Judgment Nunc Pro Tunc in lieu of the October 12, 1978 judgment, decreeing:
1) Relator in contempt of court for failing to pay child support decreed by the August 4, 1976 judgment, assessed confinement in the Johnson County jail until he: a) pay $1075. arrearage in child support; b) $250. attorney's fee; c) $68. court costs; and confinement in the Johnson County jail for 15 days.
2) Relator in contempt for "deliberately causing his automobile to come into collision on January 13, 1978 with the automobile driven by Patricia Brown, and for deliberately causing on January 13, 1978 an unreasonable physical contact with Patricia, both in wilful disobedience of the decree of August 4, 1976; and fixed punishment for such at confinement in the Johnson County jail for 15 days.
3) Both 15 day confinements should run concurrently.
The October 12, 1978 order under which relator was confined and from which confinement relator sought release by this Court on Writ of Habeas Corpus, provides that relator could purge himself of the contempt for child support arrearage by paying such sum, attorney's fees and court costs, which relator has paid. Such order further holds...
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