in Re Eric Francis Hernandez

• Court: Court of Appeals of Texas
• Decided: January 14, 2014
• Docket: 13-14-00025-CV
• Status: Published

Opinion

NUMBER 13-14-00025-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

IN RE ERIC FRANCIS HERNANDEZ

On Petition for Writ of Habeas Corpus.

MEMORANDUM OPINION Before Chief Justice Valdez and Justices Benavides and Longoria Memorandum Opinion Per Curiam1

On January 14, 2014, relator, Eric Francis Hernandez, filed a petition for writ of

habeas corpus through which he seeks release from incarceration for punitive contempt

based on his failure to pay child support. On August 15, 2013 and August 19, 2013, the

associate judge proposed and the trial court entered an order enforcing and modifying

relator’s support obligation. The order found relator in punitive contempt of court for

failing to timely make four separate child support payments and medical support

1 See TEX. R. APP. P. 52.8(d) (“When denying relief, the court may hand down an opinion but is not required to do so.”); TEX. R. APP. P. 47.4 (distinguishing opinions and memorandum opinions). payments when relator had the ability to make the payments, but did not, and ordered

relator to be committed for 180 days for each violation with the commitments to run

concurrently. The order also concluded that relator could pay $5,000.00 in arrearages

and $304.00 in court costs and ordered him incarcerated until paid. By order issued on

December 6, 2013, the trial court found no reason why sentence should not be imposed

and ordered relator committed. Through this original proceeding, relator contends that

his restraint is unlawful because he was not afforded legal representation at the

underlying hearings, he was not admonished regarding the dangers and disadvantages

of self-representation, and his waiver of the right to counsel was not effective because it

was not knowing, voluntary and intelligent.

The purpose of a habeas corpus proceeding is not to determine the ultimate guilt

or innocence of the relator, but only to ascertain whether the relator has been unlawfully

confined. Ex parte Gordon, 584 S.W.2d 686, 688 (Tex. 1979). In a habeas corpus

proceeding, the order or judgment being challenged is presumed to be valid. In re

R.E.D., 278 S.W.3d 850, 855 (Tex. App.—Houston [1 Dist.] 2009, orig. proceeding); In

re Turner, 177 S.W.3d 284, 288 (Tex. App.—Houston [1st Dist.] 2005, orig. proceeding);

Ex parte Occhipenti, 796 S.W.2d 805, 809 (Tex. App.—Houston [1st Dist.] 1990, orig.

proceeding). In order to obtain relief by habeas corpus, the relator must establish that

the underlying order is void because of a lack of jurisdiction or because the relator was

deprived of liberty without due process of law. In re Turner, 177 S.W.3d at 288; In re

Butler, 45 S.W.3d 268, 270 (Tex. App.—Houston [1st Dist.] 2001, orig. proceeding).

The relator bears the burden of showing that he is entitled to relief. In re Munks, 263

2 S.W.3d 270, 272–73 (Tex. App.—Houston [1st Dist.] 2007, orig. proceeding); In re

Turner, 177 S.W.3d at 288.

The form and requirements for an original appellate proceeding seeking

extraordinary relief, such as a petition for writ of habeas corpus, are delineated by the

Texas Rules of Appellate Procedure. See generally TEX. R. APP. P. 52. In addition to

other requirements, the relator must include a statement of facts supported by citations

to “competent evidence included in the appendix or record,” and must also provide “a

clear and concise argument for the contentions made, with appropriate citations to

authorities and to the appendix or record.” See generally TEX. R. APP. P. 52.3. In this

regard, it is clear that relator must furnish an appendix or record sufficient to support the

claim for relief. See id. R. 52.3(k) (specifying the required contents for the appendix); R.

52.7(a) (specifying the required contents for the record).

Relator's petition for writ of habeas corpus does not meet the foregoing

requirements established by the appellate rules. Specifically, for instance, every

statement of fact in the petition is not supported by citation to competent evidence

included in the appendix or record, id. R. 52.3(g); the appendix does not include proof

that the relator is being restrained, id. R. 52.3(k)(D); the record does not contain a

certified or sworn copy of every document that is material to the relator's claim for relief

and that was filed in the underlying proceeding, id. R. 52.7(a)(1); and the record does

not include a properly authenticated transcript of any relevant testimony from any

underlying proceeding, including any exhibits offered in evidence, or a statement that no

testimony was adduced in connection with the matter complained, id. R. 52.7(a)(2). In

this regard, we note that the orders at issue in this case were issued after a series of

3 various pleadings were filed and different hearings were held. Further, the substantive

issues raised by this petition for writ of habeas corpus require evidentiary support in the

record.

The Court, having examined and fully considered the petition for writ of habeas

corpus and the applicable law, is of the opinion that relator has not met his burden to

obtain relief. See In re Munks, 263 S.W.3d at 272–73; In re Turner, 177 S.W.3d at 288.

Accordingly, relator’s petition for writ of habeas corpus is DENIED WITHOUT

PREJUDICE. See TEX. R. APP. P. 52.8(a).

PER CURIAM

Delivered and filed the 14th day of January, 2014.