in Re Chouaib Aberkane ( 2023 )


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  • Petition for Writ of Habeas Corpus Granted and Memorandum Opinion filed
    February 14, 2023.
    In The
    Fourteenth Court of Appeals
    NO. 14-22-00937-CV
    IN RE CHOUAIB ABERKANE, Relator
    ORIGINAL PROCEEDING
    WRIT OF HABEAS CORPUS
    280th District Court
    Harris County, Texas
    Trial Court Cause No. 2022-30820
    MEMORANDUM OPINION
    On December 29, 2022, relator Chouaib Aberkane filed a petition for writ of
    habeas corpus in this court. See Tex. Gov’t Code Ann. § 22.221; see also Tex. R.
    App. P. 52. In the petition, relator asks this court to vacate as void the December
    12, 2022 order revoking suspension and for commitment to county jail. We grant
    the petition.1
    BACKGROUND
    On July 28, 2022, the trial court signed an agreed protective order, prohibiting
    relator from communicating with Laura Depree in a threatening or harassing manner.
    The parties also agreed to use the Talking Parents App to communicate about matters
    pertaining to the children.
    On August 12, 2022, Depree filed a motion for enforcement of the protective
    order and order to appear, alleging that relator had violated the protective order by
    continuing to communicate with Depree in a threatening and harassing manner and
    engaging in conduct that is likely to harass, annoy, alarm, abuse, torment, or
    embarrass Depree. Depree asked that relator be held in contempt, fined up to $500,
    and jailed for up to six months.
    The trial court held a hearing on September 30, 2022, and signed an order
    holding relator in contempt on October 17, 2022. The trial court found that relator
    failed to use the Talking Parents App to discuss issues concerning the children’s
    health, education, and welfare, but, instead, used it to harass Depree by
    communicating with Depree in a threatening and harassing manner in multiple
    messages.        Therefore, the trial court found relator in contempt and assessed
    punishment at six months confinement in Harris County Jail. The trial court ordered
    the sentence suspended for six months on the conditions that relator (1) not
    1
    We issued an order setting bond and requesting a response to the petition. Real party in
    interest Laura Depree did not file a response.
    2
    communicate directly with any protected person in a threatening or harassing
    manner; (2) not communicate a threat through any person to a protective person; and
    (3) pay $5,000 in Depree’s attorney’s fees. The order further noted that the parties
    acknowledged that Depree’s attorney had received the $5,000 payment from relator
    and attorney’s fee was no longer an obligation with regard to that matter.
    On November 11, 2022, Depree filed a motion to revoke suspension of
    commitment and order to appear, alleging that relator had violated the October 17,
    2022 order by continuing to communicate with her in a threatening and harassing
    manner and engaging in conduct directed toward her that is likely to harass, annoy,
    alarm, abuse, torment, or embarrass her in multiple message on several specified
    dates in October 2022. Depree also requested attorney’s fees in connection with the
    motion to revoke.
    The trial court held an evidentiary hearing on December 12, 2022. The trial
    court advised relator of his right to remain silent, which relator invoked. Depree
    provided the only testimony on the allegations that relator had violated the terms of
    the suspension of commitment. At the conclusion of the hearing, the trial court
    orally found relator in contempt for violating the terms of the suspension of
    commitment by communicating with Depree in a harassing manner and revoked the
    suspension of commitment. The trial court further sentenced relator to “six months”
    in the Harris County Jail, stating “The date that I put in the order, I calculated it for
    180 days, will be beginning today December the 12th, 2022, and ending June the
    15th, 2023.” However, in the written order, the trial court crossed out “180” and
    inserted “Beginning December 12, 2022 and ending June 15, 2023[,]” which is 185
    days and more than six months.
    3
    Relator asserts that he is entitled to habeas corpus relief because the order
    revoking the suspension of commitment is void.
    STANDARD OF REVIEW
    The power to punish a party who fails or refuses to obey a prior court order or
    decree is an inherent power of a court and is an essential element of judicial
    independence and authority. Ex parte Bennett, 
    600 S.W.2d 252
    , 254 (Tex. 1980)
    (orig. proceeding). An original habeas corpus proceeding is a collateral attack on a
    contempt order. Ex parte Rohleder, 
    424 S.W.2d 891
    , 892 (Tex. 1967) (orig.
    proceeding). The purpose of a habeas corpus proceeding is not to determine the guilt
    or innocence of the contemnor, but only to determine whether he has been
    unlawfully restrained. Ex parte Gordon, 
    584 S.W.2d 686
    , 688 (Tex. 1979) (orig.
    proceeding). To order a contemnor released, the trial court’s order directing the
    contemnor to be confined must be void because it was beyond the power of the court
    or because relator was deprived of liberty without due process of law. Bennett, 600
    S.W.2d at 254; see also In re Office of Att’y Gen., 
    422 S.W.3d 623
    , 628 (Tex. 2013)
    (orig. proceeding) (stating that contempt order is void if it is beyond power of court
    or violates due process). The contemnor bears the burden of showing that he is
    entitled to relief. In re Chaumette, 
    439 S.W.3d 412
    , 415 (Tex. App.—Houston [1st
    Dist.] 2014, orig. proceeding).
    4
    ANALYSIS
    Right to Jury Trial
    Relator argues that the commitment order is void because the trial court
    sentenced him to confinement for more than 180 days without admonishing him of
    his right to a jury trial and without a waiver of a jury trial.
    An absolute right to trial by jury in contempt proceedings does not exist. Ex
    parte Casillas, 
    25 S.W.3d 296
    , 299 (Tex. App.—San Antonio 2000, orig.
    proceeding).    Punishment assessed for criminal contempt beyond 180 days is
    considered “serious” and may not be assessed unless there was a jury trial or a jury
    waiver. In re Newby, 
    370 S.W.3d 463
    , 466 (Tex. App.—Fort Worth 2012, orig.
    proceeding); Ex parte Johns, 
    807 S.W.2d 768
    , 771 (Tex. App.—Dallas 1991, orig.
    proceeding). When the right to a jury trial exists, the record must show that the court
    informed the contemnor of that right and that the contemnor affirmatively waived
    that right. Newby, 377 S.W.3d at 466; Casillas, 
    25 S.W.3d at 299
    .
    Section 21.002(b) of the Texas Government Code provides that punishment
    for a single act of contempt of court is a fine of not more than $500 or confinement
    in the county jail for not more than six months or both. Tex. Gov’t Code § 21.002(b).
    Punishment within these limits is characterized as petty. Newby, 377 S.W.3d at 466;
    Casillas, 
    25 S.W.3d at 299
    ; Johns, 
    807 S.W.2d at
    771
    The order revoking suspension of commitment sentenced relator to more than
    180 days confinement in the Harris County Jail. Relator’s punishment is considered
    “serious” and no punishment exceeding 180 days could have been assessed without
    a jury trial or without relator’s waiver of a jury trial. See Newby, 
    370 S.W.3d at 466
    ;
    5
    Johns, 
    807 S.W.2d at 771
    . A review of the reporter’s record shows that the trial
    court did not advise relator of his right to a jury trial or that relator affirmatively
    waived that right. We will not presume that relator waived his right to a jury trial
    from a silent record. Ex parte Sproull, 
    815 S.W.2d 250
    , 250 (Tex. 1991) (orig.
    proceeding) (per curiam) (“We will not presume from a silent record that that a
    contemnor has waived his right to a jury trial.”); Ex parte Griffin, 
    682 S.W.2d 261
    ,
    262 (Tex. 1984) (orig. proceeding) (explaining, that in contempt hearing for a
    serious offense, waiver of right to jury trial cannot be presumed from silent record).
    Because relator was not given a jury trial and did not waive such right, we conclude
    that the trial court’s order imposing a 185-day sentence violates relator’s right to trial
    by jury and is void. See In re Levingston, S.W.2d 
    996 S.W.2d 936
    , 938 (Tex. App.—
    Houston [14th Dist.] 1999, orig. proceeding) (holding criminal contempt portion of
    trial court’s order was void because it violated relator’s right to jury trial where trial
    court failed to advise relator of right to jury trial and relator did not affirmatively
    waive that right).
    Purging of Contempt
    Relator further argues that the trial court did not have the authority to order
    him to pay an additional amount of attorney’s fees to purge his contempt. The order
    revoking suspension of commitment sentenced relator to confinement for an
    indeterminate period of time with his release conditioned upon paying $5,000 in fees
    to Depree’s attorney for worked performed in connection with the motion to revoke
    the suspension of commitment. Relator was not held in contempt for failing to pay
    those attorney’s fees. Therefore, the remainder of the order, which awards Dupree
    her attorney’s fees for work on the motion to revoke suspension of commitment and
    6
    compels relator to pay those fees to purge the contempt, is void because relator was
    not held in contempt for failing to pay those fees. See O’Keeffe, No. 05-18-00371-
    CV, 
    2018 WL 2296495
    , at *3 (Tex. App.—Dallas May 21, 2018, orig. proceeding)
    (mem. op.) (holding that order requiring payment of attorney’s fees to purge
    contempt was void because relator was not held in contempt for failing to pay those
    fees and costs); In re Patillo, 
    32 S.W.3d 907
    , 910 (Tex. App.—Corpus Christi 2000,
    orig. proceeding) (holding that party may not be confined for amounts he was not
    held in contempt for failing to pay.)
    CONCLUSION
    Accordingly, we grant relator’s petition for writ of habeas corpus, order
    relator released from bond set by this court on July 22, 2106, and order relator
    discharged from custody.2 Relator’s motion to abate and motion to stay are denied
    as moot.
    PER CURIAM
    Panel consists of Chief Justice Christopher and Justices Bourliot and Wilson.
    2
    Relator also urges that the order revoking suspension and is void because the trial court cannot
    order that relator is not eligible for good time credit. In light of our disposition of relator’s other issues.
    We need not address this issue in order to resolve this habeas corpus proceeding.
    7
    

Document Info

Docket Number: 14-22-00937-CV

Filed Date: 2/14/2023

Precedential Status: Precedential

Modified Date: 2/19/2023