in Re Kenneth Dewey Ferrell Jr. ( 2013 )

NUMBER 13-13-00705-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
IN RE KENNETH DEWEY FERRELL JR.
On Petition for Writ of Habeas Corpus.
MEMORANDUM OPINION
Before Justices Rodriguez, Garza, and Perkes
Memorandum Opinion Per Curiam1
On December 19, 2013, relator, Kenneth Dewey Ferrell Jr., filed a petition for writ
of habeas corpus through which he seeks release from incarceration for punitive
contempt based on his failure to pay past-due child support. On March 22, 2013 and
April 9, 2013, the associate judge proposed and the trial court entered an order
enforcing and modifying relator’s support obligation. The order found relator in punitive
contempt of court for failing to timely make four separate child support payments when
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See TEX. R. APP. P. 52.8(d) (“When denying relief, the court may hand down an opinion but is
not required to do so.”); TEX. R. APP. P. 47.4 (distinguishing opinions and memorandum opinions).
relator had the ability to make the payments, but did not, and ordered relator to be
committed for 180 days for each violation with the commitments to run concurrently. By
order issued on November 13, 2013, the trial court found no reason why sentence
should not be imposed and ordered relator committed. By three issues, relator
contends that: (1) his bankruptcy proceeding stayed the accrual of the past-due child
support payments, (2) the commitment order was entered in violation of the bankruptcy
stay and is void; and (3) the contempt and commitment orders are substantially
ambiguous.
The purpose of a habeas corpus proceeding is not to determine the ultimate guilt
or innocence of the relator, but only to ascertain whether the relator has been unlawfully
confined. Ex parte Gordon, 584 S.W.2d 686, 688 (Tex. 1979). In a habeas corpus
proceeding, the order or judgment being challenged is presumed to be valid. In re
R.E.D., 278 S.W.3d 850, 855 (Tex. App.—Houston [1 Dist.] 2009, orig. proceeding); In
re Turner, 177 S.W.3d 284, 288 (Tex. App.—Houston [1st Dist.] 2005, orig. proceeding);
Ex parte Occhipenti, 796 S.W.2d 805, 809 (Tex. App.—Houston [1st Dist.] 1990, orig.
proceeding). In order to obtain relief by habeas corpus, the relator must establish that
the underlying order is void because of a lack of jurisdiction or because the relator was
deprived of liberty without due process of law. In re Turner, 177 S.W.3d at 288; In re
Butler, 45 S.W.3d 268, 270 (Tex. App.—Houston [1st Dist.] 2001, orig. proceeding).
The relator bears the burden of showing that he is entitled to relief. In re Munks, 263
S.W.3d 270, 272–73 (Tex. App.—Houston [1st Dist.] 2007, orig. proceeding); In re
Turner, 177 S.W.3d at 288.
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The form and requirements for an original appellate proceeding seeking
extraordinary relief, such as a petition for writ of habeas corpus, are delineated by the
Texas Rules of Appellate Procedure. See generally TEX. R. APP. P. 52. In addition to
other requirements, the relator must include a statement of facts supported by citations
to “competent evidence included in the appendix or record,” and must also provide “a
clear and concise argument for the contentions made, with appropriate citations to
authorities and to the appendix or record.” See generally TEX. R. APP. P. 52.3. In this
regard, it is clear that relator must furnish an appendix or record sufficient to support the
claim for relief. See id. R. 52.3(k) (specifying the required contents for the appendix); R.
52.7(a) (specifying the required contents for the record).
The Court, having examined and fully considered the petition for writ of habeas
corpus and the applicable law, is of the opinion that relator has not met his burden to
obtain relief. Accordingly, relator’s petition for writ of habeas corpus is denied. See
TEX. R. APP. P. 52.8(a).
PER CURIAM
Delivered and filed the
20th day of December, 2013.
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