in Re Stephanie Ann Bourg

• Court: Court of Appeals of Texas
• Decided: August 27, 2007
• Docket: 01-07-00623-CV
• Status: Published

Opinion

Opinion issued August 27, 2007

In The

Court of Appeals

For The

First District of Texas

NO. 01-07-00623-CV

____________

IN RE STEPHANIE ANN BOURG, Relator

Original Proceeding on Petition for Writ of Habeas Corpus

MEMORANDUM OPINION

By a petition for writ of habeas corpus, relator, Stephanie Ann Bourg, asserts that she is illegally restrained and seeks relief from a July 26, 2007 order revoking a suspension of commitment and a separate, but contemporaneous, confinement and commitment order.

Statement of Facts

In 2001, Bourg and real party in interest, Chad Clay, had a son. In September 2003, the trial court granted Clay and Bourg's divorce, including an Agreed Order in Suit Affecting the Parent-Child Relationship. The decree contains an agreed permanent injunction prohibiting Bourg from coming within 500 feet of Clay's residence; engaging in harassing conduct directed toward Clay or their son; placing anonymous, offensive, and repetitious phone calls to Clay or their son; and committing family violence. On June 29, 2004, the trial court signed a final protective order containing many injunctive provisions similar to those in the September 2003 decree, enjoining Bourg from stalking, harassing, or contacting Clay and their son.

Subsequently, the trial court signed an agreed order holding Bourg in contempt for five violations of its divorce decree, sentencing her to confinement for 180 days for each separate violation, to run concurrently. The trial court noted that Bourg had been confined from June 4, 2004 to June 29, 2004, and suspended the remaining 155-day balance of the sentence, provided that Bourg abide by certain terms and conditions and comply with all the trial court's previous orders.

On July 18, 2006, the trial court signed an agreed temporary protective order prohibiting Bourg from (1) committing family violence, (2) communicating directly with Clay or their son in a threatening or harassing manner, and (3) communicating in any manner with Clay or their son except through Bourg's attorney. On November 10, 2006, the trial court signed a final protective order containing many injunctive provisions similar to the ones in the decree and the July 18, 2006 agreed temporary protective order.

Clay then filed his "First Amended Petition for Enforcement by Contempt for Violation of Permanent Injunctions, Agreed Temporary Protective Order and (2006) Final Protective Order and Motion to Revoke Suspension of Commitment . . . . " In his motion to revoke the suspension of commitment, Clay asserted, among other things, that Bourg failed to comply with "all the orders of the court." In the petition for enforcement, Clay alleged that Bourg had violated, on 37 separate occasions, the trial court's prior orders. Clay asked the trial court to hold Bourg in contempt for each of these violations and, as punishment, to sentence Bourg to 180 days confinement for each violation.

At the conclusion of a hearing on Clay's motion to revoke suspension of commitment and petition for enforcement by contempt, the trial court in its July 26, 2007 "Order Revoking Suspension of Commitment and for Commitment in the Harris County Jail" ("revocation order"), found that Bourg, on 37 occasions, had contemptuously violated either its September 2003 divorce decree, its July 18, 2006 temporary protective order, or its November 10, 2006 final protective order. The trial court revokeed the suspension of commitment and ordered Bourg confined until completion of her sentence, i.e., for the unserved 155 days.

Contemporaneously, in its separate "Order for Enforcement for Violation of the Final Decree of Divorce, Agreed Temporary Protective Order and (2006) Final Protective Order and for Commitment in the Harris County Jail," the trial court also found that Bourg's violations of its prior orders constituted new instances of contempt for which the trial court sentenced Bourg to confinement for 180 days. ⁽¹⁾ The trial court ordered that this contempt sentence commence immediately upon Bourg's completion of the 155-day balance of the prior contempt sentence for the violations, which predated the allegations Clay made in his May 2, 2007 petition for enforcement by contempt.

Standard of Review

A habeas corpus petition is a collateral attack on a judgment, the purpose of which is not to determine the final guilt or innocence of the relator but to ascertain whether the relator has been confined unlawfully. Ex parte Gordon, 584 S.W.2d 686, 688 (Tex. 1979). The presumption is that the order is valid. In re Turner, 177 S.W.3d 284, 288 (Tex. App.--Houston [1st Dist.] 2005, orig. proceeding) (citing Ex parte Occhipenti, 796 S.W.2d 805, 809 (Tex. App.--Houston [1st Dist.] 1990, orig. proceeding)). A writ of habeas corpus issues if a trial court's contempt order is beyond the court's power or the court did not afford the relator due process of law. Turner, 177 S.W.3d at 288 (citing In re Henry, 154 S.W.3d 594, 596 (Tex. 2005)). A relator bears the burden of showing that she is entitled to relief. Turner, 177 S.W.3d at 288 (citing Occhipenti, 796 S.W.2d at 808-09).

Right To A Jury Trial

Bourg first argues that she is entitled to habeas corpus relief because she was not afforded her Sixth Amendment ⁽²⁾ right to trial by jury for serious charges with a punishment of confinement in excess of 180 days.

Under the Sixth Amendment, an alleged contemnor has a right to a jury trial on a "serious" charge of criminal contempt. Ex parte Sproull, 815 S.W.2d 250 (Tex. 1991) (orig. proceeding) (citing Ex parte Werblud, 536 S.W.2d 542, 547 (Tex. 1976) (orig. proceeding). "A charge for which confinement may exceed six months is serious." Werblud, 536 S.W.2d at 547.

At the outset, we note that the trial court did not sentence Bourg to 335 days in jail. Rather, it first revoked suspension of commitment for the unserved 155 days of her previous confinement for prior violations. It then, for new acts of contempt, assessed a punishment that did not exceed 180 days.

The trial court revoked the suspension of commitment in its September 21, 2004 "Agreed Order Holding Respondent in Contempt" ("Agreed Contempt Order") and ordered Bourg incarcerated "until completion of sentence as heretofore rendered by this Court." (Emphasis added.) Bourg agreed to serve five sentences of confinement for 180 days to run concurrently, for each of the five stipulated and agreed to violations of the September 2003 divorce decree. Since Bourg had served 25 days in confinement, from June 4, 2004 to June 29, 2004, she had a balance of 155 suspended and unserved days left to serve on the sentence.

In support of her argument that the trial court's two orders, one revoking the prior suspension of commitment and the other contempt and commitment order may not be considered as separate orders for purposes of punishment, Bourg relies on Ex parte Sanchez, 703 S.W.2d 955, 957 (Tex. 1986) and In re McGonagill, No. 02-07-034-CV 2007 Tex. App. LEXIS 1867, 2007 (Tex. App.--Fort Worth March 5, 2007, orig. proceeding). However, neither Sanchez nor McGonagill applies here.

In Sanchez, the Texas Supreme Court recognized that when a court may impose a sentence exceeding six months, a contemner may not be denied a right to a trial by jury. Sanchez, 703 S.W.2d at 957. It also noted that even when offenses are separate and the sentences for each contempt is less than six months, the contemner is entitled to a trial by jury "if the offenses are aggregated to run concurrently, so as to result in punishment exceeding six months." Id. Here, however, in regard to the trial court's "Order Revoking Suspension of Commitment and Confinement," the trial court had already assessed a punishment of confinement, which it later ordered suspended. In regard to the "Order of Enforcement," the trial court assessed punishment for new offenses committed by Bourg after she had previously been held in contempt.

In McGonagill, the trial court held that on 42 occasions, McGonagill had violated its temporary order to pay certain household expenses and deliver certain property to his wife. McGonagill, 2007 Tex. App. LEXIS 1867, at *2. The trial court sentenced McGonagill to confinement for 10 days for each violation, but suspended commitment conditioned on McGonagill paying certain indebtedness and delivering certain property to his former spouse. Id. Based on allegations that McGonagill had failed to perform the conditions of the suspension of commitment, his former spouse filed a motion to revoke his suspension of commitment. Id. at *3. That same day, his former spouse filed another enforcement motion, alleging that McGonagill had failed to comply with the decree in several respects. Id. After a hearing, the trial court granted the two motions, revoked the suspension of the commitment, and held McGonagill in contempt for failure to comply with the decree. Id. For his failure to comply with the decree, the trial court sentenced McGonagill to confinement for three days. Id. McGonagill petitioned the court of appeals for habeas corpus relief, asserting, among other things, that the trial court's first contempt order sentencing him to 420 days' confinement violated his right to a trial by jury because the sentence exceeded 180 days. Id. at *4-5. The court of appeals granted habeas corpus relief because Mc Gonagill, in the original contempt proceeding, had not waived his right to a trial by jury. Id. at *7-8.

Here, the trial court did not aggregate separate offenses together so that the punishment of confinement exceeded 180 days. Rather, the trial court simply revoked the previous suspension of Bourg's first commitment and then assessed a punishment for subsequently committed contemptuous acts.

Bourg is currently confined pursuant to the trial court's "Order Revoking Suspension of Commitment and for Commitment in the Harris County Jail" (revocation order), serving the reinstated 155-day balance of the punitive contempt sentence the trial court assessed in 2004 for acts committed in 2004 or before. The fact that the trial court issued a new contempt order, finding subsequent violations committed by Bourg and assessing a new and separate punishment for the acts, does not void the revocation order for lack of a jury waiver.

Sufficiency of the Evidence to Support Contempt Findings

Next, Bourg asserts that there is legally insufficient evidence to support six of the trial court's contempt findings in the "Order of Enforcement by Contempt for Violation of the Final Decree of Divorce . . . ." Because Bourg is not currently confined pursuant to this order, this ground for relief is not ripe and we do not address it.

Defective Notice of Charges

Finally, Bourg asserts that for 12 items (violations 26-36) there are inconsistencies between Clay's pleadings and the trial court's revocation order findings of breach of the September 21, 2004 order's terms and conditions of the suspension of commitment and the trial court's findings of contempt in the contempt order. Because Bourg is not confined pursuant to the contempt order, her complaints with respect to it are not ripe and we do not address them. With respect to her assertions regarding the revocation order, we note that they relate to only 12 of the 37 findings. Bourg does not attack the notice, proof, and findings relative to alleged violations 1-25. Proof of any one alleged violation is sufficient to support an order revoking community supervision. In re B.C and N.C., 187 S.W.3d 721, 724 (Tex. App.--Tyler 2006, orig. proceeding). Thus, notice of one or more alleged breaches of the terms and conditions of the suspension of her commitment, which the trial court found to be true, is sufficient to support the validity of the order. Here, Bourg had notice of one or more of the ways that Clay alleged she had breached the terms and conditions of the suspension of commitment contained in the September 21, 2004 order. Because one or more of the allegations corresponded to the trial court's breach findings, Bourg has failed to discharge her burden to show that she is entitled to relief on the ground of lack of notice.

Conclusion

We conclude that Bourg has not shown that she is illegally restrained by the trial court's July 26, 2007 "Order Revoking Suspension of Commitment and for Commitment in the County Jail." We further conclude that Bourg's challenges to the July 26, 2007 "Order for Enforcement by Contempt for Violation of the Final Decree of Divorce, Agreed Temporary Protective Order and (2006) Final Protective Order and for Commitment in the Harris County Jail," are not ripe. We deny habeas corpus relief.

Terry Jennings

Justice

Panel consists of Justices Taft, Jennings, and Alcala.

1. It is unclear from the order of enforcement by contempt whether the trial court assessed one sentence of 180 days for all 37 violations or 37 sentences of 180 days to run concurrently.

2. U.S. Const. amend. VI.