Ex parte Williams

• Decision Date: 21 November 1990
• Docket Number: No. 1292-89,1292-89
• Citation: 799 S.W.2d 304
• Parties: Ex parte Thomas Hiram WILLIAMS.
• Court: Texas Court of Criminal Appeals

Page 304

799 S.W.2d 304

Ex parte Thomas Hiram WILLIAMS.

No. 1292-89.

Court of Criminal Appeals of Texas,

En Banc.

Nov. 21, 1990.

Terrence McDonald, San Antonio, for appellant.

W.C. Kirkendall, Dist. Atty. and Dwight E. Peschel, Asst. Dist. Atty., Seguin, Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW

WHITE, Judge.

Appellant was indicted for attempted capital murder, and filed an application for writ of habeas corpus prior to trial, alleging his prosecution was barred by his previous conviction for criminal contempt arising out of the same facts. The trial court denied relief, and the Court of Appeals affirmed. WILLIAMS V. STATE, 775 S.W.2D 812 (TEX.APP.--SAN ANTONIO 1989)¹.

We granted appellant's petition to determine whether conviction for criminal contempt for violating an order entered in a civil proceeding bars criminal prosecution for offenses based on the same acts which established violation of the civil order. We will affirm the Court of Appeals.

Appellant filed a civil suit against his neighbors, the Buffingtons, concerning a property dispute which had become acrimonious. Mutual temporary orders were entered restraining the parties from causing or threatening to cause physical contact or bodily injuries to each other. The Buffingtons subsequently sought to have appellant found in contempt for violating one of these orders, in that appellant had shot and injured two of the Buffingtons. The trial court conducted a hearing on the Buffingtons' motion, found appellant in contempt for violating the previously entered restraining order, ² and assessed punishment at 30 days in jail and a fine of $500 for the bodily injury violation. ³ Appellant has since served this sentence.

Subsequent to the hearing but prior to entry of the contempt order, appellant was indicted for attempted capital murder in that he intended to cause the deaths of more than one person when he shot the Buffingtons. The indictment was returned into the same trial court in which appellant had been found in contempt. Appellant filed a pretrial application for writ of habeas corpus, contending that his contempt adjudication barred his criminal prosecution pursuant to the double jeopardy provisions of both the Texas and United States constitutions. Appellant claimed the contempt adjudication was a lesser included offense of the attempted capital murder prosecution because it "was based on the identical act alleged in the indictment." The trial court denied relief.

The Court of Appeals reviewed several cases from other jurisdictions concerning criminal prosecutions after contempt adjudications based on the same underlying acts, and noted that the State was not involved in both prosecutions here. The court ultimately applied the Blockburger ⁴ test to conclude that the contempt adjudication was not a lesser included offense of the attempted capital murder prosecution, in that each required proof of an element not found in the other.

The United States Supreme Court has never directly addressed the question of whether a conviction for criminal contempt is the "same offense" as conviction for another statutorily defined crime based on the same acts. ⁵ That Court has also never directly addressed whether a judgment obtained in a civil suit between private parties can invoke the protection of the double jeopardy clause, although dicta in United States v. Halper, 490 U.S. 435, 109 S.Ct. 1892, 1903, 104 L.Ed.2d 487 (1989), indicates it cannot. ⁶

In Ex parte Looper, 61 Tex.Crim. 129, 134 S.W. 345 (App.1910), this Court relied on dicta in Ex parte Allison, 99 Tex. 455, 90 S.W. 870 (1906), to hold that conviction for a criminal offense did not bar adjudication for contempt arising from the same acts. ⁷ Two Courts of Civil Appeals have conversely held that a criminal conviction does bar a subsequent contempt adjudication for violation of an order entered in a suit between private parties, Ex parte Englutt, 619 S.W.2d 279 (Tex.Civ.App.--Texarkana 1981, no writ); Ex parte Brown, 574 S.W.2d 618 (Tex.Civ.App.--Waco 1978, no writ), but both those cases relied upon a misreading of Menna, as noted by the Court of Appeals in this cause.

Most other jurisdictions addressing the criminal contempt/criminal conviction problem have concluded that double jeopardy does not bar convictions for both, but have relied on a variety of rationales. Some, as the Court of Appeals did here, relied on Blockburger to conclude the convictions did not involve the "same offense" because each contained an element the other did not. Commonwealth v. Allen, 506 Pa. 500, 486 A.2d 363 (1984); Commonwealth v. Gallarelli, 372 Mass. 573, 362 N.E.2d 923 (1977); People v. Totten, 118 Ill.2d 124, 113 Ill.Dec. 47, 514 N.E.2d 959 (1987); People v. Lucas, 170 Ill.App.3d 164, 120 Ill.Dec. 481, 524 N.E.2d 246 (1988); People v. Allen, 787 P.2d 174 (Colo.App.1989). Others held that contempt by its nature was a different offense from other criminal convictions, because its purpose is to preserve the integrity of the court system itself, and not directly to preserve the "peace and dignity of the State." State v. Newell, 532 So.2d 1114 (Fla.App.1988); State v. Sammons, 656 S.W.2d 862 (Tenn.Crim.App.1982). One court relied on statutes specifically stating that sentences for contempt pursuant to the relevant statute were to be in addition to those for any other offenses encompassed by the acts committed. People v. McCartney, 141 Mich.App. 591, 367 N.W.2d 865 (1985). See Missouri v. Hunter, 459 U.S. 359, 103 S.Ct. 673, 74 L.Ed.2d 535 (1983).

Three courts of other jurisdictions have recently held that a criminal contempt conviction barred prosecution for another criminal offense based on the same acts. People v. Rodriguez, 162 Ill.App.3d 149, 113 Ill.Dec. 121, 514 N.E.2d 1033 (1987), found the offenses were the same under a Blockburger analysis. State v. Thompson, 294 Or. 528, 659 P.2d 383 (1983), relied on Oregon joinder statutes to find a bar even though the contempt conviction was sought by a private litigant. State v. Hope, 449 So.2d 633 (La.App.1984), held that double jeopardy barred the other criminal prosecution because the "same evidence" test used in Louisiana double jeopardy analysis had been met.

Two questions are presented in this case. First, are the contempt conviction and the attempted capital murder prosecutions the "same offense," and, second, do the double jeopardy protection of the respective constitutions apply to a conviction sought by a private citizen, not on behalf of the State?

It is well established that a contempt conviction is "criminal" if it punishes for past violations, and "civil" if it attempts to coerce future action. Hicks v. Feiock, 485 U.S. 624, 108 S.Ct. 1423, 99 L.Ed.2d 721 (1988). Classification of contempt into criminal and civil, direct and constructive (indirect), affects the type of process that is due before the contempt adjudication is deemed valid. See Young v. United States ex rel. Vuitton et fils, 481 U.S. 787, 107 S.Ct. 2124, 2132-33, 95 L.Ed.2d 740 (1987); Bloom v. Illinois, 391 U.S. 194, 88 S.Ct. 1477, 20 L.Ed.2d 522 (1968) (holding that a jury trial is required before adjudication for "serious" criminal contempt, but not for contempt resulting in punishment of less than six months); Ex parte Daniels, 722 S.W.2d 707 (Tex.Cr.App.1987).

The Sixth Amendment of the United States Constitution provides that "in all criminal prosecutions the accused shall enjoy the right to ... an impartial jury," yet this right has been held to apply to the States, as qualified by the Fourteenth Amendment, only where punishment of confinement for more than six months is possible. Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968). The Fifth Amendment protection from "be[ing] subject for the same offence to be twice put in jeopardy of life or limb" has similarly been construed to allow two convictions for the same offense as long as different "sovereigns" obtain them. Abbate v. United States, 359 U.S. 187, 79 S.Ct. 666, 3 L.Ed.2d 729 (1959); Heath v. Alabama, 474 U.S. 82, 106 S.Ct. 433, 88 L.Ed.2d 387 (1985). Also, the test for what constitutes the "same offense" can differ according to whether single or successive prosecutions are involved. Grady v. Corbin, 495 U.S. 508, 110 S.Ct. 2084, 109 L.Ed.2d 548 (1990); Garcia v. State (Tex.Cr.App. No. 1441-88, delivered June 6, 1990). Thus, the apparent protection provided by a constitutional provision can be qualified according to the context of the provision. Even though "criminal contempt is a crime in the ordinary sense," Bloom, 88 S.Ct. at 1481, it might not be a "same offense" within the scope of the double jeopardy clause. The double jeopardy protections were provided to prevent one sovereign from twice placing a person in jeopardy of life and limb, not merely to protect an individual from suffering two punishments for committing one act. To hold otherwise would preclude two states, Heath, or the federal and a state government, Abbate, from imposing separate punishments for the same acts. ⁸ However, different agents of the same sovereign are barred from obtaining separate convictions for the "same offense" even though the agents represent different political divisions of the sovereign. Waller v. Florida, 397 U.S. 387, 90 S.Ct. 1184, 25 L.Ed.2d 435 (1970). Cf. Benard v. State, 481 S.W.2d 427 (Tex.Cr.App.1972) ⁹.

In this cause the contempt conviction was sought by a private party, not on behalf of the State. Although the power of the State was used to obtain the punishment, through the state court and jail, the State did not seek this punishment. ¹⁰ We believe the jeopardy provisions protect only against prosecutions by persons on behalf of the same sovereign, and the contempt conviction here,...