In re Brown, 07-03-0165-CV.

• Decision Date: 08 May 2003
• Docket Number: No. 07-03-0165-CV.,07-03-0165-CV.
• Citation: 114 S.W.3d 7
• Parties: In re Earl Steven BROWN, Relator.
• Court: Texas Court of Appeals

114 S.W.3d 7

In re Earl Steven BROWN, Relator.

No. 07-03-0165-CV.

Court of Appeals of Texas, Amarillo.

May 8, 2003.

J. Lynda Smith, Amarillo, Real Party In Interest.

Kent Canada, Hancock & Canada, P.C., for Relator.

Before JOHNSON, C.J., and REAVIS and CAMPBELL, JJ.

OPINION

JAMES T. CAMPBELL, Justice.

This is an original habeas corpus proceeding. Relator Earl Steven Brown seeks relief from confinement under the judgment of contempt and order of commitment entered by the trial court. We deny relator's petition for writ of habeas corpus, but without prejudice to his later re-urging of his challenge to the civil contempt portion of the trial court's order.

Relator's former wife, real party in interest Amy Deann Brown, filed a Motion for Enforcement by Contempt, alleging that relator had failed to obey the trial court's orders contained in their Final Decree of Divorce dated January 11, 2001, by, among other things, failing to pay child support and maintaining health insurance coverage. At a hearing on April 1, 2003, relator acknowledged that he had not made the payments or maintained the insurance.

At the close of the hearing, the trial court found relator in contempt and imposed confinement both for criminal and civil contempt, sentencing relator to six months in the Potter County Jail, and to remain thereafter in confinement until he purges himself of civil contempt by paying the arrearage plus attorney's fees and costs. The court directed real party in interest's counsel to prepare an order. Relator was taken into custody following the hearing and remains confined in jail.

The court's order, entitled Order Holding Respondent in Contempt and for Commitment to County Jail and containing both the judgment of contempt and the commitment order, was signed April 2, 2003.

Relator'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, relator may be relieved of that order only if the judgment 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 his burden showing otherwise. Ex parte Occhipenti, 796 S.W.2d 805, 808-09 (Tex.App.-Houston [1st Dist.] 1990, orig. proceeding).

Relator presents four issues, arguing: (1) that the contempt order is void because it was not reduced to writing and signed by the trial court within a reasonable and short time after his confinement; that the criminal contempt portion of the order is void because the trial court did not admonish relator regarding (2) his right to a jury trial and (3) his right against self-incrimination; and (4) that the civil contempt portion of the order is void because relator does not have the present ability to make the payments necessary to purge himself of civil contempt.

Due process does not permit a person to be confined for contempt committed outside the court's presence based only on the court's verbal order; a written judgment of contempt and a written order of commitment are required. Ex parte Puckitt, 159 Tex. 438, 322 S.W.2d 597 (1959). When, as here, the written order of commitment and the judgment of contempt on which it is based are not available for the court's signature at the time of the hearing, the court must sign them without undue delay, within a "short and reasonable time" following the verbal commitment order. Ex parte Calvillo Amaya, 748 S.W.2d 224, 225 (Tex.1988); see Ex parte Morgan, 886 S.W.2d 829, 831 (Tex. App.-Amarillo 1994, orig. proceeding).

In Calvillo Amaya, the Supreme Court found that a three-day delay from a verbal commitment order at 5:15 p.m. on a Friday until the signing of a written judgment and order the following Monday was not a short and reasonable time. Calvillo Amaya, 748 S.W.2d at 225. Later decisions have applied the "short and reasonable time" standard. See Ex parte Jordan, 865 S.W.2d 459 (Tex.1993) (three-day delay too long); Ex parte Seligman, 9 S.W.3d 452, 454 (Tex.App.-San Antonio 1999, orig. proceeding) (five-day delay too long); In re Markowitz, 25 S.W.3d 1, 4 (Tex.App.-Houston [14th Dist.] 1998, orig. proceeding) (seven-day delay too long); Ex parte Whitehead, 908 S.W.2d 68, 70 (Tex.App.-Houston [1st Dist.] 1995, orig. proceeding) (thirty-day delay too long); Ex parte Morgan, 886 S.W.2d at 832 (four-day delay too long); Ex parte Alford, 827 S.W.2d 72, 74 (Tex.App.-Houston [1st Dist.] 1992, orig. proceeding) (forty-day delay too long).

In In re Butler, the court held that counsel's request for a period of less than 24 hours to prepare the commitment order involved a short and reasonable time. 45 S.W.3d 268, 271 (Tex.App.-Houston [1st Dist.] 2001, orig. proceeding); See also Ex parte Hogan, 916 S.W.2d 82 (Tex.App.-Houston [1st Dist.] 1996, orig. proceeding).

Here, the combined judgment of contempt and order of commitment was signed during the calendar day following the trial court's verbal order for relator's confinement.¹ On the record before us, we hold that such a delay was both short and reasonable. Relator's first issue is overruled.

Relator next contends that the criminal contempt portions of the court's order are void because of the court's failure to admonish him concerning his right to a trial by jury. In criminal contempt proceedings, a contemnor has the right to a jury trial if the contempt is a serious offense, but not if it is a petty offense. Ex parte Werblud, 536 S.W.2d 542, 547 (Tex. 1976). Relator does not specify whether he asserts the right to a jury trial under the United States Constitution or the Texas Constitution. He relies, however, on Ex parte Sproull, 815 S.W.2d 250 (Tex. 1991), for his assertion that he was faced with a potentially serious punishment, and was thus entitled to a jury trial.

Sproull, a per curiam opinion that contains the statement "A charge for which confinement may exceed six months is serious," does not specify a constitutional provision as the basis for either its statement or its decision. It simply cites Ex parte Werblud and Ex parte Griffin, 682 S.W.2d 261 (Tex.1984).² Both Werblud and Griffin are bottomed on rights granted by the Sixth Amendment to the United States Constitution. We, therefore, consider Brown's claims as asserting Sixth Amendment rights.³ Issues regarding authoritative laws, rules and remedies designed to secure federally-guaranteed rights are federal questions. Chapman v. California, 386 U.S. 18, 21, 87 S.Ct. 824, 826, 17 L.Ed.2d 705, 709 (1967). We are bound by United States Supreme Court case law interpreting the federal constitution. See State v. Guzman, 959 S.W.2d 631, 633 (Tex.Crim.App.1998).

Werblud provides an extraction of rules from salient United States Supreme Court cases considering the Sixth Amendment's parameters for jury trial requirements: (1) "petty" contempt matters may be tried without a jury while "serious" contempt cases entail the right to a jury; (2) criminal contempt in and of itself is not a serious offense absent legislative declaration to the contrary; (3) lacking legislative authorization of more serious punishment, a sentence of as much as six months in prison may be imposed without a jury trial; (4) but imprisonment for longer than six months is impermissible unless the contemnor has been given the opportunity for a jury trial, see Werblud, 536 S.W.2d at 546-547, then straightforwardly states that "Cases of criminal contempt, where the sentence actually imposed does not exceed six months imprisonment, are exempted from the requirements of a jury trial." Id. at 547, citing Taylor v. Hayes, 418 U.S. 488, 94 S.Ct. 2697, 41 L.Ed.2d 897 (1974). The opinion goes on to note, "Texas is in accord with these distinctions between petty and serious offenses." Werblud, 536 S.W.2d. at 547.

Taylor concerns a factual situation in which the contemnor was found guilty and sentenced on eight counts of contempt. The sentences originally imposed were to run consecutively and totaled over four years confinement. The trial court later amended its judgment, resulting in the sentences running concurrently, so the confinement imposed was for no more than six months. Taylor, 418 U.S. at 495-96, 94 S.Ct. at 2701-02, 41 L.Ed.2d at 906. The United States Supreme Court overruled Taylor's claim that the Sixth Amendment required he be afforded a jury trial. In doing so, the Supreme Court reaffirmed "The thrust of our decisions" on the issue: "[I]n the absence of legislative authorization of serious penalties for contempt, a State may choose to try any contempt without a jury if it determines not to impose a sentence longer than six months." 418 U.S. at 496, 94 S.Ct. at 2702, 41 L.Ed.2d at 906.

The Texas contempt statute at the time Werblud was decided provided punishment for contempt of court as a fine of not more than $500 or confinement in the county jail for not more than six months, or both, and was intended to keep contempt punishments within the petty offense category. See Werblud, 536 S.W.2d at 547. The current statute continues the proviso that punishment for contempt of court other than a justice or municipal court is a fine of not more than $500 or confinement in the county jail for not more than six months, or both. See Tex. Gov't Code Ann. § 21.002(b) (Vernon 1988).

The analysis in Werblud relies directly on United States Supreme Court case law which must govern our decision in this matter. Werblud states clearly the applicable dividing line between petty and serious contempt: unless the legislature has authorized a serious punishment for contempt (which the Texas legislature has not), the punishment imposed determines whether the contempt is petty or serious, not the punishment possible. See Werblud, 536 S.W.2d at 546-47. See also Ex parte Casillas, 25 S.W.3d 296, 299 (Tex. App.-San Antonio 2...