COURT OF APPEALS EIGHTH DISTRICT OF TEXAS EL PASO, TEXAS
IN RE: NOHA M. GOLDRUP, § No. 08-24-00311-CV
Relator. § AN ORIGINAL PROCEEDING
§ IN MANDAMUS
§
MEMORANDUM OPINION
This mandamus arises out of a discovery dispute in a divorce proceeding resulting in an
order finding Relator, Noha M. Goldrup (Mother), in contempt. In the Contempt Order, the
Honorable Lyda Ness-Garcia, Presiding Judge of the 383rd Judicial District Court, found that
Mother was in violation of an Order for Forensic Imaging of Electronic Devices (Forensic Imaging
Order) signed on September 8, 2023. The Contempt Order assessed a fine of $500 and commitment
for a period of one day in the El Paso County Jail, suspending commitment on the condition that
Mother produce the disputed discovery. Mother presents three issues challenging the validity of
the Contempt Order, asserting that she received inadequate notice at key procedural stages—
including untimely notice of the Forensic Imaging Order, inadequate notice of the conduct alleged
in the Motion for Enforcement, and ambiguity in the Forensic Imaging Order’s terms—while
maintaining across all issues that the record affirmatively establishes her inability to comply. She asks this Court to find that Judge Ness-Garcia abused her discretion and to vacate the Contempt
Order. As explained below, we conclude Mother had adequate notice and we deny the petition for
writ of mandamus.
I. FACTUAL BACKGROUND
During their marriage, Mother and Real Party in Interest, Mark Goldrup (Father), lived in
multiple residences domestically and internationally including South Africa, Estonia, Mexico,
Washington, DC, Virginia, and El Paso, Texas. Mother filed for a protective order against Father
in a Virginia state court on February 3, 2021, and for divorce in the 383rd Judicial District Court
in El Paso, Texas on May 7, 2021. The underlying dispute in the trial court concerns audio and
video recordings that Mother produced during discovery for the Virginia litigation but has not
produced in this litigation. 1
When Mother failed to produce requested discovery, Father moved to compel production
and for sanctions. On July 13, 2023, the trial court held a hearing on Father’s motion and
announced that it was overruling Mother’s objections and granting the motion to compel. 2 At the
conclusion of the hearing, Father attempted to clarify the trial court’s ruling regarding the timeline
for production of devices with recordings. The trial court did not set a date for production, opting
instead to give the parties additional time to coordinate with Justiss Rasberry, the expert qualified
to perform the data extraction, and to confer on available dates.
1 The record indicates that Mother has produced some recordings, but Father alleges that those recordings have been altered. Father is seeking the production of original, unaltered recordings, any subsequent versions or iterations, altered versions (if they exist), and metadata to prove whether recordings were altered or manipulated in any way. We express no opinion on the authenticity or admissibility of any of the recordings. 2 Father’s motion to compel is not included in the mandamus record. The trial court indicated, in the transcript for the July 13, 2023 hearing, that the motion included 49 complaints regarding discovery production. After two hours, the trial court ruled on three of the 49 and suggested to the parties that the rest be resolved on submission.
2 Three months later, at a hearing on September 7, 2023, Father asked the trial court to enter
a proposed order for production, arguing that Mother refused to respond to attempts to confer.
After limited argument from both sides, the trial court orally ordered that Mother produce the
devices on or before September 14th. The trial court’s oral ruling was memorialized in a written
order the next day, September 8, 2023. In resolving the dispute over production, the trial court
compelled Mother to produce “Devices” containing “Recordings,” stating:
The Court finds and IT IS THEREFORE ORDERED that Grace Rubio, of Rubio Digital Forensics, shall forensically image each and every device of [Mother’s] devices that contain Recordings as defined hereinbelow, which include but are not limited to [Mother’s] cell phones, cameras, video cameras and other device[s] capable of recording video and/or sound (hereinafter the “Devices”). IT IS THEREFORE ORDERED that [Mother] shall deliver the Devices to Rasberry & Associates . . . on September 14, 2023 at 9:00 a.m. . . .
The forensic imaging to be conducted by Grace Rubio shall be limited to the purpose of the search for, and the extraction of, the following information hereinafter referred to as the “Recordings”:
1. All recordings, whether auditory or visual, taken of [Father] and/or the children since May 7, 2019, including but not limited to the native recordings from the original source of the recordings, and any subsequent iterations of the recordings; and
2. Any and all metadata related to the native recording and/or subsequent iterations of the recordings, including but not limited to data reflecting the specific make, model, and serial number of the device used for recording and/or storing the original recording and any subsequent iterations of the recording, the software format used for storing the original recording and any subsequent iterations of the recording, and any software used to edit and/or alter the original recording and any subsequent iterations in any manner.
Although the trial court orally ordered production at the hearing on September 7, 2023, and signed
the Forensic Imaging Order on September 8, 2023, it was not filed by the District Clerk until
September 13, 2023. The e-service certificate shows that Mother’s then attorney was electronically
served with the Forensic Imaging Order on September 13, 2023. On September 18, 2023, after
3 Mother failed to comply with the Forensic Imaging Order, Father filed his Motion for Enforcement
seeking both civil and criminal contempt.
For reasons we cannot discern on the record before us, the Motion for Enforcement was
not set for a hearing until July 24, 2024, ten months after the trial court entered the Forensic
Imaging Order. At the hearing, Rasberry testified that Mother did not deliver any “Devices” for
imaging on September 14, 2023, and instead delivered an affidavit executed September 11, 2023,
in which she averred that she no longer had any of the requested “Devices” in her possession.
Father testified that he had knowledge that Mother owned multiple “Devices,” including a Google
Pixel 4 phone, which was backed up to Google Drive, a cloud storage platform, since she initiated
the Virginia and Texas litigation. He testified that he confirmed the Pixel 4 was backed up
February 9, 2021, and that as he understood Google Drive, unless someone deleted the files from
Google Drive, the files would be available on subsequent phones.
Mother asserted the affirmative defense of inability to comply.3 She initially testified that
she was unable to comply because she did not receive a copy of the Forensic Imaging Order until
September 18, 2023. The trial court, however, noted on the record that Mother had been present
when the Forensic Imaging Order was orally rendered. In response, Mother stated that she did not
understand the nature of the oral ruling at the time and had been waiting to receive a written order.
Mother further testified that she understood the Forensic Imaging Order to require production of
“Devices” containing original “Recordings” and claimed she could not comply because she no
longer possessed any “Devices” on which the originals were made. Father objected to this
testimony, arguing that it conflicted with Mother’s prior discovery responses in which she stated
3 Father objected to Mother’s inability-to-comply defense on the ground that it was not affirmatively pleaded in a response to the Motion for Enforcement. The trial court overruled the objection.
4 she could neither admit nor deny whether she was in possession of the “Devices.” Mother
responded that she had supplemented her discovery responses by submitting a September 11, 2023
affidavit in which she denied possessing any such “Devices.” Neither Mother’s testimony nor her
affidavit, however, identifies when she disposed of or otherwise lost possession of the “Devices.”
Instead, both merely state that she was not in possession of the “Devices” as of
September 11, 2023—the date she executed the affidavit.
Before Mother’s testimony concluded, the parties sought to revisit discovery disputes that
the trial court had previously resolved. The court promptly ended the discussion, emphasizing its
familiarity with the discovery record, reiterating that it had made clear during the July 13, 2023
hearing that Mother would be required to produce the “Devices,” and noting that it had presided
over multiple hearings culminating in the Forensic Imaging Order that Mother was accused of
violating.
At the conclusion of the hearing, the trial court clarified that enforcement of the Forensic
Imaging Order was a separate procedural matter focused on compliance. The trial court
acknowledged that the parties’ broader dispute concerned the admissibility of the recordings and
expressly reserved those questions for a later stage of the litigation. The next day, the trial court
entered an order finding Mother in contempt as follows:
7. Criminal Contempt
IT IS FURTHER ORDERED that punishment for the violation enumerated above is assessed at a fine of $500.00 and confinement in the county jail of El Paso County, Texas, for a period of one (1) day.
IT IS THEREFORE ORDERED that NOHA M. GOLDRUP is committed to the county jail of El Paso County, Texas, for a period of one (1) day for the violation enumerated above.
5 8. Suspension of Commitment
IT IS FURTHER ORDERED that commitment is suspended on the following terms and conditions:
IT IS SO ORDERED that NOHA M. GOLDRUP shall deliver each and every device of NOHA M. GOLDRUP’s devices that contain Recordings as defined hereinbelow, which include but are not limited to NOHA M. GOLDRUP’s cell phones, cameras, video cameras and other device[s] capable of recording video and/or sound . . . for forensic imaging on or before August 9th, 2024 at 4:00 p.m. MST[.]
Mother now seeks mandamus relief arguing that the Contempt Order is void.
II. MANDAMUS OR HABEAS CORPUS?
As a threshold issue, the parties dispute whether mandamus is an available remedy. Father
urges us to dismiss the petition on the ground that a Contempt Order, which includes the possibility
of confinement, may only be reviewed by writ of habeas corpus. In support of his position, Father
relies on Deramus v. Thornton, a case where the Texas Supreme Court previously held “that the
validity of a contempt judgment can be attacked only collaterally and that by way of habeas
corpus.” 333 S.W.2d 824, 827 (1960) (orig. proceeding). However, Deramus expressly
acknowledged that mandamus review of contempt orders may be appropriate in certain
circumstances. Id. at 827 (“We are not to be understood as saying, however, that there may not
arise conditions involved in contempt matters where the writ of habeas corpus would not be
adequate and where mandamus would be the proper remedy.”).
In fact, more recent Texas Supreme Court decisions hold that, because the Court of
Criminal Appeals has exclusive original jurisdiction over habeas corpus, mandamus is available
to challenge a contempt order that does not involve confinement. See Tex. Const. art. V, § 5; Dunn
v. Street, 938 S.W.2d 33, 35 (Tex. 1997) (reviewing a show cause order and stating that Deramus
was not intended to foreclose mandamus review of contempt orders in all circumstances). Two
6 years after Dunn, the Texas Supreme Court, in In re Long, recognized that a writ of mandamus is
an appropriate remedy when the contempt order at issue does not involve confinement. 984
S.W.2d 623, 625 (Tex. 1999) (orig. proceeding) (“Contempt orders that do not involve
confinement cannot be reviewed by writ of habeas corpus, and the only possible relief is a writ of
mandamus.”); accord In re Reece, 341 S.W.3d 360, 369 (Tex. 2011) (orig. proceeding).
Conversely, when the contemnor has been confined or released on bond, a contempt order is
properly reviewed by an application for writ of habeas corpus. In re Cisneros, 487 S.W.3d 237, 241
(Tex. App.—El Paso 2015, orig. proceeding).
Here, the Contempt Order assesses a fine and commitment, suspending the commitment
provided that Mother deliver “Devices” (“which include but are not limited to . . . cell phones,
cameras, video cameras and other device[s] capable of recording video and/or sound”) that contain
“Recordings,” (i.e., audio or video recordings taken of Father and/or the children since
May 7, 2019) as those terms are defined in the Forensic Imaging Order and the Contempt Order.
When commitment is assessed but suspended, an order is reviewable by petition for writ of
mandamus rather than habeas corpus. See id. at 241 (finding mandamus review appropriate when
the relator had not yet been taken into custody); In re Look, No. 01-02-00959-CV, 2003
WL 876650 at *2 (Tex. App.—Houston [1st Dist.] March 5, 2003, orig. proceeding) (finding
habeas relief inappropriate when relator’s incarceration was a “speculative possibility,” but
denying mandamus relief on other grounds). Accordingly, because the Contempt Order suspended
commitment, and Mother is not confined, she may seek relief by petition for writ of mandamus.
III. STANDARD OF REVIEW
Mandamus is an extraordinary remedy, available only when there has been a clear abuse
of discretion by the trial court for which there is no adequate remedy by appeal. In re Prudential
7 Ins. Co. of America, 148 S.W.3d 124, 135 (Tex. 2004). Because contempt orders are not subject
to direct appeal, there is no adequate remedy by appeal, and the relator need only establish a clear
abuse of discretion. In re Mittelstead, 661 S.W.3d 639, 647 (Tex. App.—Houston [14th
Dist.] 2023, original proceeding). The trial court abuses its discretion if it reaches a decision that
is so arbitrary and unreasonable as to amount to a clear and prejudicial error of law, or if it clearly
fails to analyze or apply the law correctly. In re Cerberus Cap. Mgmt., L.P., 164 S.W.3d 379, 382
(Tex. 2005). We defer to the trial court’s factual determinations that have evidentiary support, but
we review the trial court’s legal determinations de novo. In re Labatt Food Serc., L.P., 279
S.W.3d 640, 643 (Tex. 2009) (orig. proceeding).
In an original proceeding challenging a contempt order, the relator may discharge this
burden by showing that the order is void. See In re Lowry, 511 S.W.3d 256, 256 (Tex. App.—
Dallas 2015, orig. proceeding) (mem. op.) (citing In re Coppock, 277 S.W.3d 417, 418
(Tex. 2009) (orig. proceeding) (habeas context)). A contempt order is void if it was rendered
without adequate notice or if the record presents no evidence of contempt. In re Wal-Mart Stores,
Inc, 545 S.W.3d 626, 631 (Tex. App.—El Paso 2016, orig. proceeding) (finding inadequate
notice); In re D.L., 641 S.W.3d 873, 888 (Tex. App.—Fort Worth 2022, orig. proceeding).
IV. CONTEMPT
Contempt is defined as willful “disobedience to or disrespect of a court by acting in
opposition to its authority.” In re Luther, 620 S.W.3d 715, 721 (Tex. 2021) (orig. proceeding) (per
curiam); Ex Parte Chambers, 898 S.W.2d 257, 259 (Tex. 1995) (orig. proceeding). Courts have
broad and inherent power to punish contemptuous conduct. In re Reece, 341 S.W.3d at 364 (citing
Ex parte Browne, 543 S.W.2d 82, 86 (Tex. 1976) (orig. proceeding). As another threshold matter,
a reviewing court must classify a contempt judgment as either direct or constructive, and as either
8 civil or criminal. In re Reece, 341 S.W.3d at 365. The classification is essential because it
determines the procedural protections afforded to the alleged contemnor. In re Gabrielova, 527
S.W.3d 290, 294 (Tex. App.—El Paso 2016, orig. proceeding) (discussing notice requirements);
In re Johnson, 150 S.W.3d 267, 271 (Tex. App.—Beaumont 2004, original proceeding) (op. on
rhr’g).
Direct contempt occurs in the court’s presence and is punishable by immediate action. In
re Reece, 341 S.W.3d at 365. Constructive contempt, in contrast, occurs outside the court’s
presence and affords the alleged contemnor due process considerations including notice,
opportunity to be heard, and representation by counsel. In re Wal-Mart Stores, Inc, 545 S.W.3d at
631. The contempt at issue in this appeal—Mother’s alleged failure to comply with the Forensic
Imaging Order—is constructive contempt. See, e.g., Id. at 631 (classifying failure to comply with
a discovery order as constructive contempt).
Whether a contempt judgment is civil or criminal depends on the nature of the punishment.
In re Reece, 341 S.W.3d at 365. Civil contempt is “remedial and coercive” in nature. Id.; In re
Gabrielova, 527 S.W.3d at 294. It is said that a civil contemnor “carries the keys to the jail cell”
because confinement is conditioned upon compliance with the court’s order. In re Reece, 341
S.W.3d at 365. “Release may be procured or commitment avoided altogether by compliance with
the trial court’s order.” In re Mittlested, 661 S.W.3d at 648. Criminal contempt is punitive in
nature—it is designed to punish a prior act of disobedience rather than to coerce future compliance.
In re Reece, 341 S.W.3d at 365. A criminal contempt conviction for violation of a court order
requires proof beyond a reasonable doubt of: (1) a reasonably specific order; (2) a violation of the
order; and (3) the willful intent to violate the order. Ex parte Chambers, 898 S.W.2d at 259; In re
Braden, 483 S.W.3d 659, 664 (Tex. App.—Houston [14th Dist.] 2015, orig. proceeding) (per
9 curiam). A court may issue an order that assesses punishment for both civil and criminal contempt,
which is considered a “hybrid” order. See Ex parte Sanchez, 703 S.W.2d 955, 957 (Tex. 1986)
(orig. proceeding) (recognizing that courts can combine both forms of contempt in one order).
The contempt at issue in this appeal is hybrid in nature, as the Contempt Order contains
both civil and criminal components. The $500 fine constitutes criminal contempt because it is
punitive and unconditional. In contrast, the suspended commitment is coercive and remedial in
nature as it is designed to compel Mother’s compliance with the Forensic Imaging Order. Mother
may purge the civil contempt and avoid confinement if she complies, but she cannot avoid the
$500 fine, which remains as punishment for her past conduct. See, e.g., Ex parte Busby, 921
S.W.2d 389, 391 (Tex. App.—Austin 1996) (concluding that an order that both allowed a party to
avoid confinement by compliance and assessed a fine that could not be avoided was a hybrid
order). Thus, the Contempt Order before us is a constructive, hybrid order.
V. DISCUSSION
Having now classified the Contempt Order, we turn to Mother’s arguments. As we
understand it, her primary complaint across all three issues, is that she received inadequate notice
throughout the contempt process, which we briefly outline below. If Mother indeed received
inadequate notice, then the Contempt Order is void, and she is entitled to mandamus relief. In re
Wal-Mart Stores, Inc, 545 S.W.3d at 631.
First, an alleged contemnor must have knowledge or notice of the underlying order that
they are accused of violating, and that order must be enforceable by contempt. A party cannot be
held in contempt for violating a court order of which they had no knowledge, as willful
disobedience is a necessary element of contempt. See Ex Parte Chambers, 898 S.W.2d at 259
(“[O]ne must have knowledge or notice of an order which one is charged with violating before a
10 judgment of contempt will obtain.”). To be enforceable by contempt, the language of the order
must provide the means of compliance in “clear, specific, and unambiguous terms so that such
person will readily know exactly what duties or obligations are imposed upon him . . . .” In re
Janson, 614 S.W.3d at 727 (quoting Ex parte Slavin, 412 S.W.2d 43, 44 (Tex. 1967 (orig.
proceeding)); see also In re Coppock, 277 S.W.3d at 418 (orig. proceeding) (requiring an
underlying order to “unequivocally command [] that person to perform a duty or obligation”).
Thus, adequate notice requires both knowledge of the order and clarity of the language. The
underlying order in the present case is the Forensic Imaging Order.
Second, the alleged contemnor is entitled to notice of the contempt allegations against
them. In cases involving criminal contempt, a heightened notice standard applies which requires
two distinct forms of notice: (1) timely personal service of the show cause hearing, and (2) full
and unambiguous notice of the contempt charges. 4 In re Walmart, 545 S.W.3d at 631–32 (citing
Gonzalez v. State, 187 S.W.3d 166, 170 (Tex. App.—Waco 2006, no pet.)). To be full and
unambiguous, the notice of the contempt allegations “must state when, how, and by what means
the person has been guilty of contempt. See In re Cisneros, 487 S.W.3d at 242; Ex parte
Chambers, 898 S.W.2d at 262. Furthermore, the Texas Family Code requires that a motion for
enforcement and any resulting order of confinement must clearly state “the manner of the
respondent’s noncompliance.” Tex. Fam. Code Ann. §§ 157.002(a)(2), 157.166(a)(3). A contempt
order entered without personal service of the enforcement hearing, or without full and
unambiguous notice of the charges, is void. See In re Gabrielova, 527 S.W.3d at 295.
4 Mother’s petition does not dispute personal service, only that the allegations in the Motion for Enforcement were ambiguous.
11 Although we previously concluded that this is a hybrid contempt judgment, given the
punitive nature of criminal contempt and the liberty interest at stake, we conclude it is both
appropriate and equitable to apply the heightened criminal standard. See, e.g., Ex parte
Chambers, 898 S.W.2d at 261; In re Houston, 92 S.W.3d 870, 876–77 (Tex. App.—Houston [14th
Dist.] 2002, orig. proceeding) (applying the criminal standard to a hybrid contempt proceeding).
Finally, the contempt judgment must include specific language providing the contemnor with
notice of what actions are required to purge the contempt. In re Luther, 620 S.W.3d at 720 n. 13.
Mother does not contend that the language in the Contempt Order is insufficient.
Mother complains that the Contempt Order is void because (1) the Motion for Enforcement
did not provide full and unambiguous notice of the charges against her; (2) she had no knowledge
of the Forensic Imaging Order until after the deadline to comply; and (3) the underlying Forensic
Imaging Order lacked specificity to notify her of the means of compliance. We address each of her
complaints in turn.
A. The language in the Motion for Enforcement
In her first issue, Mother contends that the Motion for Enforcement failed to provide
adequate notice of the alleged contemptuous conduct. Notice is sufficient if it informs the alleged
contemnor of when, how, and by what means the underlying order was violated. See In re
Cisneros, 487 S.W.3d at 242. Father’s Motion for Enforcement alleged one violation of the
Forensic Imaging Order:
On or about September 14, 2023, [Mother] failed to “deliver the Devices to Rasberry & Associates, 201 East Main, Suite 1616, El Paso, Texas 79901 for forensic imaging on September 14, 2023 at 9:00 a.m.” Specifically, [Mother] failed to deliver any Devices to Rasberry & Associates, 201 East Main, Suite 1616, El Paso, Texas 79901 for forensic imaging on September 14, 2023 at 9:00 a.m.
12 This language is identical to the language used by the trial court in the underlying Forensic Imaging
Order. 5 Notably, Mother’s petition fails to identify any specific language in the Motion for
Enforcement that she contends is vague or ambiguous, as is required for this Court to conclude
that the Contempt Order is void.
Thus, to the extent Mother asks this Court to conclude that the Motion for Enforcement
provided inadequate notice of the alleged contempt, we disagree. We find the language in the
Motion for Enforcement to be both clear and unambiguous, providing Mother with adequate notice
of the conduct at issue—namely, her alleged failure to deliver any “Devices” to Rasberry &
Associates on September 14, 2023, as required by the Forensic Imaging Order. We overrule
Mother’s first issue.
B. Notice of the underlying Forensic Imaging Order
In Mother’s second issue, she argues that the Contempt Order is void because she did not
receive notice of the Forensic Imaging Order until after the deadline to comply. 6 Although not
expressly framed as such, we consider Mother’s assertion that she lacked timely notice of the
deadline as a challenge to the willfulness element of contempt. Rule 52.3(f) of the Texas Rules of
Appellate Procedure requires appellate courts to treat a statement of the issue as encompassing
5 Mother also raises, as her third issue, whether the language of the Forensic Imaging Order is ambiguous such that she was not provided with adequate notice of what was required of her. 6 Father’s responses in this original proceeding urge this Court to deny relief because Mother provided an inaccurate and incomplete record. See Tex. R. App. P. 52.7(a). It is clear from a comparison of the certified hearing transcripts and various exhibits included in Mother’s petition and supplemental record that Mother’s mandamus record contains inaccuracies. However, Mother is only required to provide this Court with a certified or sworn copy of “every document that is material” to her claim for relief. Id. (a)(1). We find that the record provided is adequate to resolve Mother’s first and second issues regarding notice as it contains file stamped copies of the relevant filings and certified transcripts of the July 13, 2023 hearing on the motion to compel and the July 24, 2024 hearing on the Motion for Enforcement. Mother’s record is likely insufficient to resolve her third issue, discussed below, which involves discovery responses considered by the trial court to find her in contempt. Fortunately, Father submitted a supplemental mandamus record containing corrected versions of the exhibits of which he complains as well as certified and sworn copies of Mother’s discovery responses. Therefore, we decline to deny the petition on this ground.
13 “every subsidiary question that is fairly included.” Tex. R. App. P. 52.3(f). Willfulness is a
subsidiary question inherent in any contempt finding and turns on whether the alleged contemnor
knew of the obligation and willfully failed to comply. Ex parte Chambers, 898 S.W.2d at 259
(“[O]ne must have knowledge or notice of an order which one is charged with violating before a
judgment of contempt will obtain.”). Thus, by raising lack of timely notice, the question of whether
the Contempt Order is void because Mother did not willfully violate the Forensic Imaging Order
is properly before this Court. Tex. R. App. P. 52.3(f).
Although criminal contempt requires proof beyond a reasonable doubt of the willfulness
element, in an original proceeding, an appellate court does not reweigh or assess the factual
sufficiency the evidence supporting the trial court’s contempt finding. In re Braden, 483 S.W.3d
at 662 (citing In re Long, 984 S.W.2d at 626–27). Instead, the reviewing court must determine
whether a contempt judgment is void because there is no evidence of contempt. In re D.L., 641
S.W.3d at 888; accord, In re Mayorga, 538 S.W.3d 174, 178 (Tex. App.—El Paso 2017, orig.
proceeding).
Contrary to Mother’s contention, the record contains evidence that Mother had knowledge
and notice of the Forensic Imaging Order before the deadline to comply. Thus, we cannot say that
the Contempt Order is void because her violation was not willful. First, Mother had knowledge
that the trial court granted Father’s motion to compel by virtue of her presence at the July 13, 2023
hearing on Father’s motion to compel, wherein the parties and the trial court explicitly
contemplated the production of Mother’s “Devices” for forensic analysis of metadata contained
within recordings.
Second, Mother attended the September 7, 2023 hearing via Zoom. She was present when
the trial court orally ordered her to produce “Devices” to Rasberry & Associates on
14 September 14, 2023—something the trial court noted on the record during the hearing on the
Motion to Enforce, which occurred ten months later on July 24, 2024. Third, the Forensic Imaging
Order was electronically filed and served on Mother’s then-attorney on September 13, 2023,
at 4:32 p.m. Thus, the record supports that Mother had imputed knowledge of the requirements
through her attorney before the deadline the following morning. See, e.g., McMahan v.
Greenwood, 108 S.W.3d 467, 480–81 (Tex. App.—Houston [14th Dist.] 2003, pet. denied)
(“Knowledge acquired by an attorney during the existence of an attorney-client relationship, and
while acting in the scope of his or her authority, is imputed to the client.). Finally, although Mother
did not deliver “Devices” on the September 14, 2023 deadline, she did deliver an affidavit
swearing that she no longer possessed any “Devices,” seriously undermining her argument that
she lacked notice or adequate time to respond. Taken together, this evidence in the record tends to
support that Mother had notice of the Forensic Imaging Order before the compliance deadline. The
trial court, as fact finder, is the sole judge of a witness’s credibility, See, e.g., In re Mancha, 440
S.W.3d 158, 167 (Tex. App.—Houston [14th Dist.] 2013, orig. proceeding). And because we do
not reweigh the evidence—only determine whether there is no evidence of contempt—we cannot
say that the trial court abused its discretion or that the Contempt Order is void. In re Mayorga, 538
S.W.3d at 178. We overrule Mother’s second issue.
C. The language in the underlying Forensic Imaging Order
In her third and final issue, Mother urges us to find that the Contempt Order is void because
the language of the Forensic Imaging Order was too vague and ambiguous to support a contempt
finding. However, the substance of Mother’s argument focuses on her inability-to-comply defense
and additionally argues that the trial court improperly relied on her prior discovery responses to
15 find her in contempt. None of these contentions support the conclusion that the Contempt Order is
void.
To be enforceable by contempt, the language of the order must provide the means of
compliance in “clear, specific, and unambiguous terms so that such person will readily know
exactly what duties or obligations are imposed upon him . . . .” In re Janson, 614 S.W.3d at 727
(quoting Ex parte Slavin, 412 S.W.2d at 44). The language of the Contempt Order repeats verbatim
the language of the Forensic Imaging Order, which we have already concluded is clear and
unambiguous in Mother’s first issue. Again, as in her first issue, Mother does not identify any
language in the Forensic Imaging Order that creates an ambiguity preventing her from
understanding the obligations and conditions of her compliance. 7 Therefore, we cannot find the
Forensic Imaging Order void on this ground.
Mother’s third issue, instead, is more properly construed as a factual challenge to her
inability-to-comply defense. Unlike in her second issue, where Mother asserted that lack of notice
of the Forensic Imaging Order negated the willfulness element of contempt, here Mother asserts
that her lack of possession of any “Devices” negates the willfulness element as she cannot willfully
fail to produce something that is no longer in her possession. Again, as this is a factual argument—
to hold the Contempt Order void, there must be no evidence of contempt in the record as we cannot
reweigh the evidence. In re Mayorga, 538 S.W.3d at 178.
7 In her response to Father’s reply, Mother states: “It is apparent from [Mother’s] petition, however, that her arguments relate to the language of the orders—not to evidentiary questions extraneous thereto.” We disagree. As we understand Mother’s petition, she does not identify or challenge the language of any of the orders at issue in this original proceeding. Instead, she continually challenges the trial court’s consideration of her discovery responses, which is an evidentiary issue that relates to her inability-to-comply defense.
16 The record before us contains Mother’s testimony at the Motion for Enforcement that she
no longer possessed “Devices” containing “Recordings.” However, it also includes her sworn
supplemental answers to interrogatories, signed March 15, 2024, that directly conflict with her
testimony. 8 Interrogatory one asks:
State the time, place, manner of recording, circumstances recorded in each recording, whether auditory or visual, and a description of the device used for such recording, that you have taken of [Father] and/or the children since May 7, 2019, and if the recording has been lost, has been destroyed or is not presently in your possession, custody, or control, describe the recordings, the date of its loss, destruction, purge, or separation from your possession, custody, or control, and the circumstances.
In response, Mother lists 20 recordings. Of those, Mother responds that three recordings were
already produced by counsel, one is listed as a duplicate, and 16 are listed as “saved on USB and
dropbox.” The Forensic Imaging Order required Mother to submit for forensic imaging, “each and
every device of [Mother’s] devices that contain Recordings as defined hereinbelow, which include
but are not limited to [Mother’s] cell phones, cameras, video cameras and other device[s] capable
of recording video and/or sound (hereinafter the “Devices”) (emphasis added). As defined, the trial
court could reasonably infer from her admission that she retained access to at least two
“Devices”—a USB storage device and a dropbox connected computer or account. 9 The trial court
determines credibility and may resolve any inconsistencies in the testimony. In re Mancha, 440
S.W.3d at 167. Because evidence supports the trial court’s finding that “on the day of [the
July 24, 2024] hearing, [Mother] had the ability to comply with the prior [Forensic Imaging Order]
of the Court[,]” the Contempt Order is not void.
8 As previously stated, Mother did not provide this Court with her discovery responses. However, Father included sworn copies in his supplemental mandamus record. 9 The Forensic Imaging Order also required mother to provide Rasberry “with any and all passcodes, passwords, or other information necessary to access the “Devices.”
17 As a final matter, Mother suggests, in this issue and across all her issues, that the trial court
impermissibly relied on her prior discovery responses as an independent basis for contempt. This
assertion is incorrect. Instead, the trial court appropriately considered those responses as relevant
evidence in evaluating whether Mother’s noncompliance was willful. We overrule Mother’s third
issue.
V1. CONCLUSION
For the reasons stated above, we deny Mother’s petition for writ of mandamus. Tex. R.
App. P. 52.8(a).
MARIA SALAS MENDOZA, Chief Justice
April 16, 2025
Before Salas Mendoza, C.J., Palafox and Soto, JJ.