Ex Parte Rhodes

974 S.W.2d 735, 1998 Tex. Crim. App. LEXIS 85, 1998 WL 348420

• Court: Court of Criminal Appeals of Texas
• Decided: July 1, 1998
• Docket: 357-97
• Status: Published

Opinions

OPINION

PRICE, Judge,

delivered the opinion of the Court in which

BAIRD, OVERSTREET, MEYERS, HOLLAND and WOMACK, Judges, join.

David Eugene Rhodes, appellee, was indicted for the offense of interference with child custody. Prior to trial, he filed an application for a writ of habeas corpus contending that the Double Jeopardy Clause of the United States Constitution barred his prosecution for this offense because of his previous criminal contempt conviction based on the same conduct. The trial court granted relief. On appeal by the State, a panel of the Fourteenth Court of Appeals reversed the trial court’s decision and held that appel-lee’s prosecution was not jeopardy barred. Ex parte Rhodes, 938 S.W.2d 192 (Tex.App.—Houston [14th Dist.] 1997, pet. granted).¹ We granted appellee’s petition for discretionary review to determine if the Double Jeopardy Clause prohibits a criminal prosecution following a criminal contempt conviction for the same conduct.² We will reverse.

I. Factual Background

Upon appellee’s divorce from his wife, the trial court entered a decree ordering that their child reside in Harris County, Texas, and enjoining either party from changing the child’s county of residence without prior court approval. On August 30, 1994, appel-lee, in violation of the order, removed his child to Malaysia and then Singapore. The child remained abroad until July 20, 1995. Shortly after appellee returned to the United States, he was arrested and charged with the offense of interference with child custody. See Tex. Penal Code Ann. § 25.03 (Vernon 1994).³ Several months before appellee’s arrest, his former wife had instituted proceedings to have appellee found in contempt of court for violating the custody order.

On October 17, 1995, the trial court held a hearing on the motion for enforcement filed by appellee’s ex-wife and found appellee in contempt of court for violating the order’s provisions. The judge assessed punishment at payment of a $100 fine and $2500 in legal fees to compensate his ex-wife’s attorney. The court also required appellee to post a $2500 bond to ensure future compliance with the custody order.⁴

Appellee filed an application for a pre-trial writ of habeas corpus in the 183rd District Court, where his criminal charges were pending, contending that the Double Jeopardy Clause of the Fifth Amendment to the United States Constitution barred his prosecution for interference with child custody due to his prior contempt conviction. After an evidentiary hearing, the trial court granted habeas corpus relief and the State appealed. See Tex.Grim. PROc.Code Ann. § 44.01(a)(4) (Vernon Supp.1997).

II. Decision of the Court of Appeals

Relying on this Court’s holding in Ex parte Williams, 799 S.W.2d 304 (Tex.Crim.App.1990), the Fourteenth Court of Appeals reversed the trial court’s decision to grant relief on the writ of habeas corpus. The court of appeals explained that in Williams we declined to find that a criminal contempt action, initiated by a private party, prohibited a subsequent criminal prosecution based on the same conduct. Rhodes, 938 S.W.2d at 194. The court discerned no basis to distinguish appellee’s claim from that of Williams and found that the United States Supreme Court decision in United States v. Dixon, 509 U.S. 688, 113 S.Ct. 2849, 125 L.Ed.2d 556 (1993), which was issued after Williams, did not dictate a different result. As noted by the court of appeals, Dixon concluded that, in some instances, a finding of criminal contempt bars a subsequent criminal prosecution involving the same conduct. Rhodes, 938 S.W.2d at 194. The court pointed out, however, that Dixon did not directly address “the ‘private party versus state’ distinction ... [and] that nothing in Dixon was inconsistent with the ‘multiple sovereignty’ analysis used in Williams. ...” Id. Thus, they held, in light of Williams, that it was error for the trial court to grant the writ of habeas corpus. Id. at 195.

III. Arguments of the Parties

Appellee contends that the court of appeals erred in relying on Williams. Instead, he advocates that the Supreme Court’s holding in Dixon controls the outcome of his case. He reasons that when the Supreme Court rejected — in a footnote — the prosecution’s “multiple sovereignty” analysis, this implicitly overruled Williams since this Court employed a similar rationale to sanction the holding in Williams. Pursuant to Dixon, appellee concludes that his prosecution for interference with child custody is jeopardy barred.

The State counters by arguing that litigation between private parties does not invoke the protections of the Double Jeopardy Clause. Because the contempt proceedings in this case were initiated and litigated solely by appellee’s ex-wife, as part of her civil case, the State characterizes the contempt proceeding like a civil action for punitive damages and unlike a criminal prosecution. Alternatively, the State suggests that appellee’s two prosecutions do not constitute the “same offense” under Double Jeopardy jurisprudence. Employing a rationale similar to that advanced in its first argument, the State contends that a contempt action arises from violation of a court order entered for the benefit of a private party, whereas a criminal prosecution is brought by the State to protect its citizens. As a result, the contempt proceeding “is different in virtually every respect from the sort of ‘offense’ defined by the Penal Code and prosecuted by the State in a criminal court.” Brief for State at 6. The State, in its final point, urges this Court to follow Williams and to distinguish Dixon on its facts.

IV. Analysis

The Double Jeopardy Clause provides that no person shall “be subject for the same offence to be twice put in jeopardy of life or limb.” U.S. Const, amend. V.⁵ The protection afforded by this Clause applies to: a second prosecution for the same offense after acquittal; a second prosecution for the same offense after conviction; and multiple punishments for the same offense. See Department of Revenue of Montana v. Kurth Ranch, 511 U.S. 767, 769 n. 1, 114 S.Ct. 1937, 1941 n. 1, 128 L.Ed.2d 767 (1994) (citing North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969)). This case concerns the second of these protections. Before delving further into this case, we must consider the recent decision of the U.S. Supreme Court.

A. United States v. Dixon

In a recent plurality opinion, the United States Supreme Court addressed the issue of whether or not the protection of the Double Jeopardy Clause attaches in indirect (non-summary) criminal contempt prosecutions.⁶ Dixon, 509 U.S. at 696, 113 S.Ct. at 2856. The Court reiterated that criminal contempt is “a crime in the ordinary sense,” and, thus, warrants the same constitutional safeguards as other criminal prosecutions. Id. at 695-697, 113 S.Ct. at 2855-2856 (quoting Bloom v. Illinois, 391 U.S. 194, 201, 88 S.Ct. 1477, 1481-1482, 20 L.Ed.2d 522 (1968)).

In the first of two consolidated eases,⁷ Dixon had been arrested on charges of second degree murder and later released on bond with the condition that he not violate any law. While awaiting trial, Dixon was arrested for possession of cocaine with intent to distribute and the district court issued a show cause order requiring Dixon to explain why he should not be held in contempt of court. Id. at 691, 113 S.Ct. at 2853. At the hearing, the judge found that Dixon had committed the offense, found him in criminal contempt, and sentenced him to 180 days in jail. Id. at 692, 113 S.Ct. at 2853.

Foster, the defendant in the second case, was found guilty on four counts of criminal contempt for physically assaulting his wife and otherwise violating two civil protective orders. He was subsequently indicted for assault, assault with intent to kill and three counts of threatening to injure another, all based on the events at issue in the contempt proceeding. Id. at 692-693, 113 S.Ct. at 2853-2854. On appeal, the appellate court held that further prosecution of both Foster and Dixon violated the Double Jeopardy Clause. Id. at 693-694, 113 S.Ct. at 2854.

In Dixon, a majority of the members of the Court appeared to indicate that Block-burger ⁸ is the primary test to use when reviewing a double jeopardy claim, but they could not agree on how the test applied in this instance.⁹ Id. at 696-697, 113 S.Ct. at . Writing for a splintered Court, Justice Scalia, joined by four others, concluded that Dixon’s subsequent prosecution and Foster’s prosecution for assault were jeopardy barred.¹⁰ As well, a majority of justices agreed to overrule the three-year old “same conduct” test — under which the critical inquiry to establish a jeopardy bar is the scope of the conduct the government will prove, not the evidence it will use to prove the conduct — that had been adopted in Grady v. Corbin, 495 U.S. 508, 110 S.Ct. 2084, 109 L.Ed.2d 548 (1990). Dixon, 509 U.S. at 704-712, 118 S.Ct. at 2860-2864.

The fractured nature of Dixon provides little guidance for courts to follow. However, it is still Supreme Court precedent and thus we are bound to follow it as best we can.¹¹ Therefore, our analysis will be a pragmatic one: we will analyze each separate opinion in Dixon and apply the legal reasoning of each opinion to the facts before us to determine whether or not each justice in Dixon would find that appellee’s subsequent prosecution is barred by double jeopardy; we will then tally the “votes” as determined from Dixon to determine whether a majority of members from that decision would find that appellee’s subsequent prosecution is barred by double jeopardy.¹² In doing so, we believe that we will be replicating what is the essential “holding” of Dixon. See Nichols v. United States, 511 U.S. 738, 745-746, 114 S.Ct. 1921, 1926-1927, 128 L.Ed.2d 745 (1994); Marks v. United States, 430 U.S. 188, 193-194, 97 S.Ct. 990, 993-994, 51 L.Ed.2d 260 (1977); Gregg v. Georgia, 428 U.S. 153, 169 n. 15, 96 S.Ct. 2909, 2923 n. 15, 49 L.Ed.2d 859 (1976).

B. Application of Dixon

First, we briefly address the opinion of the Court of Appeals. It held that Dixon did not control, since in the present case, the contempt prosecution was brought by a private party (appellee’s ex-wife), and the “majority opinion” in Dixon had no discussion of the “private party versus state” distinction. Rhodes, 938 S.W.2d at 194. In Dixon, the prosecution for contempt of court was brought against Foster by a private party, his estranged wife. Dixon, 509 U.S. at 692-693, 113 S.Ct. at 2853-2854. A majority of the Court held that one count of Foster’s subsequent prosecution was jeopardy barred. Id. at 712, 113 S.Ct. at 2864 (opinion of Scalia, J., joined by Kennedy, J.); id. at 741, 113 S.Ct. at 2879 (opinion of White, J., joined by Stevens, J.); id at 763, 113 S.Ct. at 2891 (opinion of Souter, J., joined by Stevens, J.). Thus, although there is no specific discussion of the “private party versus state” distinction by a majority of the members of the Court in Dixon, the inevitable conclusion, based on the outcome of that case, is that such a distinction is irrelevant for purposes of Double Jeopardy analysis. This seems particularly clear, given that Foster was found guilty beyond a reasonable doubt on various counts of criminal contempt. Id. at 693, 113 S.Ct. at 2854 (opinion of Scalia, J., joined by Kennedy, J.). Also, this issue was certainly considered by the Supreme Court, since, as Justice Scalia pointed out, “the United States was not represented at trial, although the United States Attorney was apparently aware of the action ...” Id. at 692, 113 S.Ct. at 2854 (opinion of Scalia, J., joined by Kennedy, J.). Therefore, we hold that the Court of Appeals erred and that Dixon applies to the present case. We now analyze appellee’s prosecutions under Dixon, rather than remanding the cause back to the Court of Appeals, so as to give guidance to our lower courts when faced with attempting to apply the U.S. Supreme Court’s fragmented and rather confusing decision.

Under Justice Scalia’s Blockburger analysis, which was joined by Justice Kennedy, the count against Dixon and one of the counts against Foster were barred by Double Jeopardy. Dixon, 509 U.S. at 697-703, 113 S.Ct. at 2856-2859 (opinion of Scalia, J.). Justice Scalia’s approach was to do a Blockburger analysis, comparing the terms of the court order underlying the contempt charge with the elements of the substantive criminal statute underlying the subsequent criminal prosecution. Id. at 697-703, 113 S.Ct. at 2856-2859 (opinion of Scalia, J,).¹³

Recently, the Texas Supreme Court held that the elements that must be proved in a constructive criminal contempt conviction are the following: (1) a reasonably specific order; (2) a violation of the order; (3) the willful intent to violate the order. Ex parte Chambers, 898 S.W.2d 257, 259 (Tex.1995). As appellee’s conviction for criminal contempt arose from a civil proceeding, it is still considered a “civil,” rather than a “criminal,” case. Harbison v. McMurray, 138 Tex.192, 158 S.W.2d 284, 288 (1942). Therefore, we are bound by Texas Supreme Court precedent on this matter, and will apply these elements to analyze appellee’s Double Jeopardy claim.¹⁴

“Willfulness” is not a culpable mental state recognized under our penal code. See Tex.Pen.Code Ann. § 6.02 (Vernon 1994) (classifying culpable mental states as “intentional,” “knowing,” “reckless” and “criminal negligence”). However, the Texas Supreme Court has stated that “... one must have knowledge or notice of an order which one is charged with violating before a judgment of contempt will obtain.” Chambers, 898 S.W.2d at 261. Therefore, we analyze the final element of proof of the contempt conviction as having a culpable mental state of “knowing.”

In the present ease, appellee was found in contempt of a decree ordering that his child reside in Harris County and enjoining either he or his ex-wife from changing the child’s county of residence without prior approval. Thus, the elements of appellee’s contempt conviction are changing the child’s county of residence without prior approval of the court and doing so knowing that this was a violation of the court order. Under the relevant provision of Tex. Penal Code § 25.03, the elements of the offense of “Interference With Child Custody” are (1) taking or retaining a child younger than 18 years; (2) when the defendant knows that his taking or retention violates the express terms of a judgment or order of a court disposing of the child’s custody.

Comparing the two provisions, under Justice Scalia’s analysis, the court order would be a “lesser included offense” of the penal code provision. That is, the requisite culpable mental states are the same, and if one changes a child’s county of residence, one always takes or retains the child, but one can take or retain a child without changing the child’s county of residence. Therefore, we find that under Justice Scalia’s approach, appellee’s subsequent prosecution for Interference with Child Custody would be jeopardy barred, since appellee was already prosecuted for the “lesser included offense” of criminal contempt. Illinois v. Vitale, 447 U.S. 410, 421, 100 S.Ct. 2260, 2267, 65 L.Ed.2d 228 (1980); Brown v. Ohio, 432 U.S. 161, 169-170, 97 S.Ct. 2221, 2227, 53 L.Ed.2d 187 (1977); Jeffers v. United States, 432 U.S. 137, 150-151, 97 S.Ct. 2207, 2216, 53 L.Ed.2d 168 (1977).

The other opinions in Dixon were far less intricate in their analysis than Justice Sca-lia’s, and instead focused primarily upon various policies. Under Chief Justice Rehnquist’s Blockburger analysis, which was joined by Justices O’Connor and Thomas, none of the counts against either Dixon or Foster were barred by Double Jeopardy. Id. at 713-720, 113 S.Ct. at 2865-2868 (opinion of Rehnquist C.J.). Rehnquist also believed that Blockburger should apply, but that the focus should be “... not on the terms of the particular court orders involved, but on the elements of contempt of court in the ordinary sense ... Because the generic crime of contempt of court has different elements than the substantive criminal charges in this case, I believe that they are separate offenses under Blockburger.” Id. at 714, 113 S.Ct. at 2865 (opinion of Rehnquist, C.J.). Clearly then, under Rehnquist’s approach, appellee’s subsequent prosecution for Interference with Child Custody would not be jeopardy barred.

Justice White, joined by Justice Stevens and in part by Justice Souter, rejected Justice Scalia’s application of Blockburger, referring to it as “... an overly technical interpretation of the Constitution.” Id. at 720, 113 S.Ct. at 2869 (opinion of White, J.). Instead, White’s focus was on the “... central purpose of the Double Jeopardy Clause ... to protect against vexatious multiple prosecutions ...” Id. at 735, 113 S.Ct. at2876 (opinion of White, J.). Therefore, it is fairly clear that under Justice White’s approach, appel-lee’s subsequent prosecution for Interference with Child Custody would be jeopardy barred.

Justice Blackmun, reasoning in a manner similar to Chief Justice Rehnquist, noted that the cases before the Court dealt not with successive prosecutions under the substantive criminal law, but with contempt of court, which he termed “a special situation.” Id. at 741-742, 113 S.Ct. at 2880 (opinion of Blaek-mun, J.). Focusing on the purpose of contempt, “... not to punish an offense against the community at large but rather to punish the specific offense of disobeying a court order,” he believed that none of the subsequent prosecutions against either Dixon or Foster were barred by Double Jeopardy. Therefore, we conclude that Justice Black-mun would clearly find that appellee’s subsequent prosecution for Interference "with Child Custody would not be jeopardy barred.

Finally, Justice Souter, joined by Justice Stevens, emphasized that Blockburger was not the exclusive test by which to determine whether the rule against successive prosecutions applied. Id., at 754-755, 113 S.Ct. at 2886-2887 (opinion of Souter, J.). Instead, he focused on several other precedents, including Grady v. Corbin, 495 U.S. 508, 110 S.Ct. 2084, 109 L.Ed.2d 548 (1990), which was overruled by a majority of the Court in Dixon. Dixon, Id. at 749-761, 113 S.Ct. at 2884-2890 (opinion of Souter, J.). That is, in each case before the Court, it was the same conduct that was the subject of both the contempt proceedings and the subsequent prosecutions, and thus all of the subsequent prosecutions were barred. Id. at 763, 113 S.Ct. at 2891 (opinion of Souter, J.). Thus, under Justice Souter’s analysis, appellee’s subsequent prosecution for Interference with Child Custody would clearly be barred.

Conclusion

To summarize then, an analysis of the various opinions in Dixon, as applied to the facts of the case before us, reveals the following Supreme Court “votes:”

(1) Scalia and Kennedy — Barred by Double Jeopardy Clause — 2 votes;

(2) Rehnquist, O’Connor and Thomas— Not barred by Double Jeopardy Clause — 3 votes;

(3) White and Stevens — -Barred by Double Jeopardy Clause — 2 votes;

(4) Blackmun — Not barred by Double Jeopardy Clause — 1 vote;

(5) Souter (and Stevens) — Barred by Double Jeopardy — 1 vote.

TOTAL: Barred by Double Jeopardy Clause — 5 votes; Not Barred by Double Jeopardy Clause — 4 votes.

The final tally shows that under Dixon, since appellee has already been prosecuted for contempt of court, his subsequent prosecution is barred by the Double Jeopardy Clause of the U.S. Constitution. Therefore, we reverse the judgment of the Court of Appeals and reinstate the trial court’s grant of the writ of habeas corpus.

KELLER, J., concurs with opinion. McCORMICK, P.J., dissents with an opinion which MANSFIELD, J., joins.

1 . The court of appeals styled this case State v. Rhodes. Because it is an appeal from a habeas corpus proceeding, it should be styled Ex parte Rhodes.

2 . Appellee's sole ground for review is: “The court of appeals erred in holding that reversible error was committed by the trial court with its holding that a criminal contempt conviction served as a bar to subsequent criminal prosecution.”

3 .The record does not reflect the specific indictment with which appellee was charged. We assume, for purposes of this appeal, that he was charged under Tex Pen.Code Ann. § 25.03(a)(1) (Vernon 1994).

4 . The record does not reflect the specific statutory contempt provision under which the defendant was convicted. We assume, for purposes of this appeal, that he was convicted under Tex. Gov't Code Ann. § 21.002 (Vernon 1988 & Supp. 1998).

5 . This provision applies to the states by incorporation through the Due Process Clause of the Fourteenth Amendment. Benton v. Maryland, 395 U.S. 784, 795-96, 89 S.Ct. 2056, 2062-2063, 23 L.Ed.2d 707 (1969).

6 . Indirect or nonsummary contempt is contemptuous conduct committed outside the court’s presence. See Young v. United States ex rel. Vuitton et Fils S.A., 481 U.S. 787, 798-99, 107 S.Ct. 2124, 95 L.Ed.2d 740 (1987). Direct or summary contempt, in contrast, is contemptuous conduct which occurs in open court in the judge's presence. Id.

7 . The District of Columbia Court of Appeals consolidated the two cases since they raised similar double jeopardy issues.

8 . Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932).

9 . Under Justice Scalia's Blockburger analysis, which was joined by Justice Kennedy, the count against Dixon and one of the counts against Foster were barred by Double Jeopardy. Dixon, 509 U.S. at 697-703, 113 S.Ct. at 2856-2859 (opinion of Scalia, J.). Under Chief Justice Rehnquist's Blockburger analysis, which was joined by Justice O’Connor and Thomas, none of the counts against either Dixon or Foster were barred by Double Jeopardy. Id. at 713-720, 113 S.Ct. at 2865-2868 (opinion of Rehnquist C.J.). Justice White, joined by Justice Stevens, appeared to endorse some application of the Block-burger test, but specifically disagreed with Justice Scalia’s application of it. Id. at 741, 113 S.Ct. at 2879 (opinion of White, J.). Justice Souter, joined by Justice Stevens, emphasized that Block-burger was not the exclusive test by which to determine whether the rule against successive prosecutions applied. Id. at 754-755, 113 S.Ct. at 2886-2887 (opinion of Souter, J.). Justice Blackmun, although coming to a different conclusion than Justice Souter in the cases before the Court, stated that he agreed with Justice Souter that Blockburger was not the exclusive test by which to determine whether the rule against successive prosecutions applied. Id. at 741, 113 S.Ct. at 2880 (opinion of Blackmun, J.).

10 . There is no actual holding of the court, but only a judgment, as to this. Justice Scalia, joined by Justice Kennedy, stated that he believed that Dixon's subsequent prosecution and Count I of Dixon's subsequent prosecution were barred by Double Jeopardy, but that Counts II-IV of Dixon’s subsequent prosecution were not barred by Double Jeopardy. Dixon, 509 U.S. at 712, 113 S.Ct. at 2864 (opinion of Scalia, J.). Chief Justice Rehnquist, joined by Justices O’Connor and Thomas, joined Parts I, II and IV of Justice Scalia’s opinion and stated that, in his opinion, Double Jeopardy was not violated by any of the substantive criminal prosecutions. Id. at 713-714 & 719-720, 113 S.Ct. at 2865 & 2868. Justice White, joined by Justice Stevens, stated that he concurred only in the judgment of Part III-A of Justice Scalia's opinion, believing that Dixon’s subsequent prosecution and Count I of Foster's subsequent prosecution were barred. Id. at 740, 113 S.Ct. at 2879 (opinion of White, J.). Justice Blackmun stated that he believed that none of the subsequent prosecutions of either Dixon or Foster was barred. Id. at 743, 113 S.Ct. at 2881 (opinion of Blackmun, J.). Justice Souter, joined by Justice Stevens, stated that he concurred with the judgment that both Dixon’s subsequent prosecution and Count I of Foster’s subsequent prosecution were barred, but that he dissented from the judgment that Counts II-IV of Foster’s subsequent prosecution were not barred. Id. at 763, 113 S.Ct. at 2891. Thus, the final tally reveals that a majority of the members of the court (five — Scalia, Kennedy, White, Stevens, Souter) believed Dixon’s subsequent prosecution and count I of Foster’s subsequent prosecution were barred, and that a majority (six — Scalia, Kennedy, Rehnquist, O'Connor, Thomas, Blackmun) believed that counts II-IV of Foster’s subsequent prosecution were not barred.

11 . Even in the face of a fragmented precedent, we do not feel at liberty, as some courts do, to ignore that precedent and instead base our opinion on what we believe the current Court might do. See, e.g., Hopwood v. Texas, 78 F.3d 932, 941-945 (5th Cir.1996) (ignoring precedent of Regents of University of California v. Bakke, 438 U.S. 265, 98 S.Ct. 2733, 57 L.Ed.2d 750 (1978) and concluding that current Supreme Court would find that diversity is not a compelling justification for state university law school’s affirmative action admissions program), cert. denied, 518 U.S. 1033, 116 S.Ct. 2581, 135 L.Ed.2d 1095 (1996).

12 . At first glance, this analysis may seem rather odd, since two of the justices whose votes were crucial in Dixon, White & Blackmun, have since retired from the Court. However, this is no different than when we rely on a precedent by a court whose members at the time of that decision are long gone; here, we are merely basing our decision on the opinions of individual justices in a particular case, rather than on the opinion of "the court.”

13 . It should be pointed out that, having set out his approach to analyzing the problem, Justice Scalia went on to apparently misapply his own legal reasoning in at least one instance. Specifically, in Foster’s case, three of his counts were brought under a criminal statute prohibiting threats "... to kidnap any person or to injure the person of another or physically damage the property of any person.” Dixon, 509 U.S. at 702, 113 S.Ct. at 2859. The contempt prosecution was based on the court order that he not “in any manner threaten” his estranged wife. Id. Conviction of contempt required willful violation of the court order. Id. Thus, under a Blockburger analysis, since threatening in any manner would clearly include threatening to kidnap, injure or physically damage property, then the criminal statute would be a "lesser included offense” of the court order. That is, all of the elements of the criminal statute are included in the court order. Therefore, conviction for contempt pursuant to the court order would, according to Justice Scalia’s approach, preclude a subsequent conviction under the criminal statute. Yet, Justice Scalia simply asserts:

"Conviction of the contempt required violation of the [court order] — which conviction under [the criminal statute] did not; and conviction under [the criminal statute] required that the threat be a threat to kidnap, inflict bodily injury, or to damage physical property — which conviction of the contempt (for violating the [court order] provision that Foster not ‘in any manner threaten’) did not. Each offense therefore contained a separate element, and the Blockburger test for double jeopardy was not met.” Id. at 702-703, 113 S.Ct. at 2859 (emphasis added and footnote omitted).

14 . Whether a criminal contempt proceeding arising out of a civil proceeding is a criminal or civil case is an important issue, since it is dispositive as to whether this Court or the Texas Supreme Court has jurisdiction over such a contempt case. See Tex. Const. art. V, §§ 3 & 5; Tex. Gov’t Code Ann. § 22.001 (Vernon 1988); Tex.Code Crim. Proc. Ann. art. 4.04 (Vernon Supp.1998). Dixon itself may well call into question Harbison, which was decided in 1942. That is, in Dixon, a majority of the United States Supreme Court noted that it was "well established that criminal contempt, at least the sort enforced through non-summary proceedings, is 'a crime in the ordinary sense.’” Dixon, 509 U.S. at 696, 113 S.Ct. at 2856 (opinion of Scalia, J., joined by Rehnquist, C.J., and O’Connor, Kennedy and Thomas, JJ.) (citations omitted). Nevertheless, this issue is not now directly before us, and we therefore decline to address it.