Ex Parte Christopher Guerrero ( 2014 )

Fourth Court of Appeals
San Antonio, Texas
MEMORANDUM OPINION
No. 04-14-00748-CV
EX PARTE Christopher GUERRERO
Original Habeas Corpus Proceeding 1
PER CURIAM
Sitting: Karen Angelini, Justice
Marialyn Barnard, Justice
Rebeca C. Martinez, Justice
Delivered and Filed: November 5, 2014
PETITION FOR WRIT OF HABEAS CORPUS DENIED
On October 27, 2014, relator Christopher Guerrero filed an original pro se habeas corpus
proceeding contending he is being illegally confined after the trial court found him in contempt
for failure to pay previously ordered child support and ordered him confined for 180 days.
Specifically, Guerrero asserts: (1) the trial court failed to inform him of his right to counsel under
the Texas Family Code; (2) the trial court failed to make a determination of his ability to purge
himself of the child support obligation; and (3) Sheriff Susan Pamerleau has failed to give him
“good time” credit in violation of his right to equal protection under the law. See TEX. FAM. CODE
ANN. §§ 157.008(c), 157.163 (West 2014).
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This proceeding arises out of Cause No. 1999EM503566, styled In the Interest of A.G., K.A.G., P.G., Children,
pending in the 224th Judicial District Court, Bexar County, Texas, the Honorable Eric Rodriguez presiding.
04-14-00748-CV
This court received from the trial court clerk copies of the trial court’s Order on
Appointment of Counsel and Setting Cause for Trial, and Order Enforcing Child Support and
Medical Support Obligation. The Order on Appointment of Counsel, which was signed by
Guerrero, indicates that a hearing was conducted on September 12, 2013, and reflects the trial
court’s finding that Guerrero “is not indigent and not entitled to the appointment of an attorney.”
A relator is entitled to habeas corpus relief if he establishes he was deprived of liberty
without due process of law, or if we conclude the judgment ordering confinement is void. See In
re Henry, 154 S.W.3d 594, 596 (Tex. 2005) (orig. proceeding); In re Alexander, 243 S.W.3d 822,
824 (Tex. App.—San Antonio 2007, orig. proceeding). The purpose of a habeas corpus proceeding
is not to determine the relator’s guilt or innocence, but to ascertain if the relator has been
unlawfully confined. Ex parte Gordon, 584 S.W.2d 686, 688 (Tex. 1979) (orig. proceeding);
Alexander, 243 S.W.3d at 827.
In family law enforcement proceedings, the Family Code requires the trial court to
determine whether the proceeding is one in which incarceration may result and, if so, the court is
obligated to inform a respondent of the right to counsel and, if indigent, the right to an appointed
attorney. See TEX. FAM. CODE ANN. § 157.163(a), (b). In the present case, Guerrero’s signature
appears on the Order on Appointment of Counsel. The Order provides, “this is a proceeding in
which incarceration of the Respondent may result” and reflects the trial court’s finding that
Guerrero “is not indigent and not entitled to the appointment of an attorney.” Guerrero also signed
the separate Order Enforcing Child Support and Medical Support Obligation, entered on the same
date, which reflects that Guerrero “appeared in person Pro Se and was advised of his rights,
including the right to a court appointed attorney if found indigent. The Court finds that
CHRISTOPHER GUERRERO knowingly and intelligently waived his rights and proceeded Pro
Se and agreed to the entry of these orders.” We conclude the trial court properly admonished
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Guerrero of his right to counsel in accordance with the Family Code. See TEX. FAM. CODE ANN.
§ 157.163.
Guerrero also complains the trial court failed to make a determination of his ability to purge
himself of the child support obligation. The Family Code provides that an obligor may plead as an
affirmative defense to an allegation of contempt that he lacked the ability and resources to provide
support in the amount ordered. See TEX. FAM. CODE ANN. § 157.008(c). However, it is Guerrero’s
burden in the trial court to conclusively establish the affirmative defense. See Ex parte Rojo, 925
S.W.2d 654, 656 (Tex. 1996) (orig. proceeding). It is also his burden as relator in this proceeding
to provide this court with a record sufficient to establish his right to habeas corpus relief. See TEX.
R. APP. P. 52.7(a); Walker v. Packer, 827 S.W.2d 833, 837 (Tex. 1992) (orig. proceeding). The
trial court’s Order Enforcing Child Support and Medical Support Obligation includes its findings
that Guerrero “could have timely paid the above specified child support in full” and “could have
provided the required medical support during each specified time period.” Guerrero has failed to
provide this court with a record supporting his claim that he is entitled to habeas corpus relief on
the basis of conclusively establishing an affirmative defense in the trial court.
Finally, Guerrero contends he is being denied equal protection under the law by the denial
of “good time” credits on his sentence when such credits are available to prisoners serving
sentences on criminal charges. While article 42.032 of the Texas Code of Criminal Procedure gives
the sheriff discretion to award “good time” credit to those being punished by criminal contempt
orders, the statute does not apply to those being punished by coercive civil contempt orders. See
TEX. CODE CRIM. PROC. ANN. art. 42.032 § 2 (West Supp. 2014); Ex parte Acly, 711 S.W.2d 627,
628 (Tex. 1986) (orig. proceeding). The trial court’s order in this case imposes both punitive
contempt and coercive civil contempt findings. Guerrero would not be entitled to consideration for
“good time” credit under the statute for the criminal contempt portion of the order until he has
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satisfied the coercive contempt portion of the order. See Acly, 711 S.W.2d at 628. The record does
not demonstrate that Guerrero has satisfied the coercive contempt requirements of the trial court’s
order. Accordingly, we are unable to say that there is any abuse of discretion in the failure to award
“good time” credits in this instance. TEX. R. APP. P. 52.7(a); Walker, 827 S.W.2d at 837. Guerrero
has not established that he is entitled to habeas corpus relief on this ground. See TEX. CODE CRIM.
PROC. ANN. art. 42.032 § 2; Ex parte Acly, 711 S.W.2d at 628.
Relator’s petition for writ of habeas corpus is denied.
PER CURIAM
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