In re Allen-Pieroni

• Decision Date: 05 May 2011
• Docket Number: No. 06-11-00046-CV,06-11-00046-CV
• Parties: In re: BONNIE ALLEN-PIERONI
• Court: Texas Court of Appeals

IN RE: BONNIE ALLEN-PIERONI

No. 06-11-00046-CV

Court of Appeals Sixth Appellate District of Texas at Texarkana

Date Submitted: May 4, 2011

Date Decided: May 5, 2011

Original Habeas Corpus Proceeding

Before Morriss, C.J., Carter and Moseley, JJ.

MEMORANDUM OPINION

Bonnie Allen-Pieroni and Marc John Pieroni were divorced in 2009 and were named joint managing conservators of their three children. By its order dated March 22, 2011, after finding Allen-Pieroni in contempt for violating the standing child-possession orders¹ on fourteen different occasions stretching from July 12, 2010, through January 10, 2011, the trial court ordered Allen-Pieroni confined for seven separate twenty-four-hour periods, one for each of the seven violations admitted by Allen-Pieroni, and ordered a single, separate suspended sentence for the other violations, the ones which Allen-Pieroni denied committing. By application for writ of habeas corpus, ² Allen-Pieroni complains that she was not admonished at the contempt hearing concerning her rights, that she was improperly ordered to pay attorneys' fees, ³ and that the appointed amicus attorney harmfully testified using confidential information belonging to her. Because Allen-Pieroni has not demonstrated herself entitled to such relief, we deny her application.

Allen-Pieroni's original habeas corpus proceeding in this Court is a collateral attack on the contempt order. Ex parte Dustman, 538 S.W.2d 409, 410 (Tex. 1976). Therefore, Allen-Pieroni may be granted relief from that order only if it is void. Id.; Ex parte Thetford, 369 S.W.2d 924, 925 (Tex. 1963); Ex parte Scariati, 988 S.W.2d 270, 272 (Tex. App.—Amarillo 1998, orig. proceeding). When collaterally attacked in a habeas corpus proceeding, a judgment is presumed valid until the relator has discharged the burden showing otherwise. In re Brown, 114 S.W.3d 7, 9 (Tex. App.—Amarillo 2003, orig. proceeding); Ex parte Occhipenti, 796 S.W.2d 805, 808-09 (Tex. App.—Houston [1st Dist.] 1990, orig. proceeding).

Allen-Pieroni has the burden to present to this Court a sufficient record to support her claim for relief. See Ortiz v. State, 144 S.W.3d 225, 229-30 (Tex. App.—Houston [14th Dist.] 2004, pet. ref'd). Without having before us a complete record, we presume that the record contains information demonstrating a lack of error. In re Lau, 89 S.W.3d 757, 760-61 (Tex. App.—Houston [1st Dist.] 2002, orig. proceeding); see Applewhite v. State, 872 S.W.2d 32, 33 (Tex. App.—Houston [1st Dist.] 1994, no pet.).

In this case—though she indicated in her application a desire to provide us at least some part of the reporter's record, and we specifically gave her an opportunity to do so—Allen-Pieroni has provided us no record of the proceedings. Instead, she relies on two affidavits, one by her counsel and one by Allen-Pieroni herself, each affidavit labeled as a "bystander's bill," attached to the application as evidence. Rule 33.2(c)(3) of the Texas Rules of Evidence provides a proceduretraditionally referred to as a "Bystander's Bill of Exception," which enables a party to develop a record and place an issue before an appellate court when the party's version of events differs from that of the trial court. Tex. R. App. P. 33.2(c)(3); see Thieleman v. State, 187 S.W.3d 455, 457 n.2 (Tex. Crim. App. 2005); Bryan v. Watumull, 230 S.W.3d 503, 516 (Tex. App.—Dallas 2007, pet. denied). Because Allen-Pieroni has not argued or shown that her situation fits within the scope of the rule, the attempted use of a bystander's bill is improper to act as a replacement for a record. With an insufficient record before us, we will provide no relief. In re Mott, 137 S.W.3d 870 (Tex. App.—Houston [1st Dist.] 2004, orig. proceeding); see Tex. R. App. P. 52.3(k)(1)(A).

We deny habeas corpus relief.

Josh R. Morriss, III

Chief Justice

1. It appears that both of the...