in Re Kenneth Dewey Ferrell Jr.

Opinion

NUMBER 13-13-00705-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

IN RE KENNETH DEWEY FERRELL JR.

On Petition for Writ of Habeas Corpus.

MEMORANDUM OPINION

Before Justices Rodriguez, Garza, and Perkes Memorandum Opinion Per Curiam1

On December 19, 2013, relator, Kenneth Dewey Ferrell Jr., filed a petition for writ

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

contempt based on his failure to pay past-due child support. On March 22, 2013 and

April 9, 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 when

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). 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. By

order issued on November 13, 2013, the trial court found no reason why sentence

should not be imposed and ordered relator committed. By three issues, relator

contends that: (1) his bankruptcy proceeding stayed the accrual of the past-due child

support payments, (2) the commitment order was entered in violation of the bankruptcy

stay and is void; and (3) the contempt and commitment orders are substantially

ambiguous.

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

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

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

2 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).

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. Accordingly, relator’s petition for writ of habeas corpus is denied. See

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

Delivered and filed the 20th day of December, 2013.