in Re Michael Jones ( 2007 )

NO. 07-07-0202-CV

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL A

MAY 25, 2007

______________________________



IN RE: MICHAEL JONES, RELATOR

_________________________________

Before CAMPBELL and HANCOCK and PIRTLE, JJ.

ORDER GRANTING HABEAS CORPUS RELIEF

This is an original proceeding for habeas corpus relief. ⁽¹⁾ The record before this Court reflects that on October 10, 2006, Relator appeared before the trial court to respond to Carol McGee's attempt to revoke a prior order suspending imposition of a 90-day contempt sentence for non-payment of child support. In addition to seeking revocation of the prior order of contempt, McGee requested that the trial court also consider holding Relator in criminal contempt for at least twelve new violations of the order of support. Finding that Relator failed to pay child support as ordered on twelve specific dates, the trial court revoked the prior order suspending imposition of commitment and entered a finding of contempt as to each separate violation. The court then sentenced him to 100 days confinement in the Moore County Jail for each separate violation. The trial court also ordered that the periods of confinement run consecutively for a total of 1200 days, with the initial period of confinement to begin to run after Relator had served his 90 day sentence according to the court's simultaneous order revoking the prior order suspending imposition of commitment. Relator contends that the Order Holding Respondent in Contempt for Failure to Pay Child Support, Granting Judgment, and for Commitment to County Jail is void because a "serious criminal penalty" could not be imposed without affording him the right to a jury trial. Relator further contends that his right to a jury trial was violated because he did not waive that right prior to imposition of sentence. We agree. For that reason, we grant the habeas relief requested and order that Relator be immediately released.

Both the United States Supreme Court and the Texas Supreme Court have held that absent the full protection of a jury trial, a person found to be guilty of criminal contempt cannot be punished by a "serious criminal penalty." United Mine Workers of America v. Bagwell, 512 U.S. 821, 833, 114 S. Ct. 2552, 2560, 129 L. Ed. 2d 642 (1994); Ex parte Sproull, 815 S.W.2d 250 (Tex.1991). A "serious criminal penalty" is one where the potential period of incarceration exceeds 180 days. Ex parte Sproull, 815 S.W.2d at 250. Ex parte Werblud, 536 S.W.2d 542, 546-47 (Tex. 1976).

In this case, the record shows that the trial court did not inform Relator of his right to a jury trial before proceeding to consider McGee's motion for enforcement. Furthermore, although the Order Holding Respondent in Contempt for Failure to Pay Child Support, Granting Judgment, and for Commitment to County Jail reflects that "a jury was waived," nothing in the record supports this statement. Pursuant to a request from this Court for a response from the real party in interest, McGee has conceded that Relator did not waive his right to a jury trial prior to commencement of the contempt proceeding. Notwithstanding the recitation of waiver contained in the order, in light of this concession, we will not presume that Relator has waived his right to a jury trial. Ex parte Griffin, 682 S.W.2d 261, 262 (Tex. 1984). Because Relator did not waive his right to a jury trial, the Court, without hearing oral arguments, grants the writ of habeas corpus and orders Relator be immediately discharged. Tex. R. App. P. 52.8. All other relief requested is denied.

Per Curiam

1. This case originates from the 69^th District Court of Moore County. Senior District Judge David Gleason sitting by assignment.

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NO. 07-10-0158-CR

                                                   IN THE COURT OF APPEALS

                                       FOR THE SEVENTH DISTRICT OF TEXAS

                                                                 AT AMARILLO

                                                                     PANEL D

                                                           SEPTEMBER 2, 2010

                                            ______________________________

                                                       MONICA SASHA JONES,

                                                                                                            Appellant

                                                                             v.

                                                        THE STATE OF TEXAS,

                                                                                                            Appellee

                                           _______________________________

                             FROM THE 66^TH DISTRICT COURT OF HILL COUNTY;

                       NO.  32,549; HON. F.B. (BOB) MCGREGOR, JR., PRESIDING

                                           _______________________________

Memorandum Opinion

_______________________________

Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.

            Appellant Monica Sasha Jones appeals the judgment adjudicating her guilty of endangering a child.  Through a single issue, she contends that she was denied due process when the trial court “re-reviewed the original presentence investigation report.”  We affirm.

Issue – Due Process

            Appellant contends that the trial court abused its discretion and denied her due process when it reviewed a presentence investigation report (at the adjudication hearing) that was prepared five years earlier instead of ordering a new one.  The record does not disclose where that objection or concern was contemporaneously brought to the attention of the trial court, however, and this is problematic.   

            To preserve a complaint for appellate review, the complainant must object to the purported error.  Tex. R. App. P. 33.1(a)(1)(A); Saldano v. State, 70 S.W.3d 873, 891 (Tex. Crim. App. 2002) (holding that failure to make an objection may waive constitutional error); Nunez v. State, 117 S.W.3d 309, 319 (Tex. App.–Corpus Christi 2003, no pet.) (holding that the failure to timely and specifically object at trial may waive even constitutional rights).  Furthermore, the objection must be made as soon as the ground for same becomes apparent. House v. State, 909 S.W.2d 214, 216 (Tex. App.–Houston [14th Dist.] 1995), aff’d, 947 S.W.2d 251 (Tex. Crim. App. 1997).  Appellant did not comply with these directives here.  The trial court expressly informed the litigants of its intent to “re-review the presentence investigation” report.  No objection was made by appellant.  So, she failed to preserve the purported error.  See Summers v. State, 942 S.W.2d 695, 696-97 (Tex. App.–Houston [14th Dist.] 1997, no pet.) (holding that the appellant waived objection to the failure to order a PSI because the objection was not raised below).[1]

Accordingly, we overrule her issue and affirm the judgment of the trial court.

                                                                                    Brian Quinn

                                                                                    Chief Justice

Do not publish.

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[1]To the extent that appellant’s issue could also encompass the notion that she was denied opportunity to present evidence on punishment, we again note that no one raised that particular ground below.  Thus, it too was waived.  See Harris v. State, 160 S.W.3d 621, 626 (Tex. App.–Waco 2005, pet. dism’d).