In Re Danny Burkett v. the State of Texas

In The
Court of Appeals
Ninth District of Texas at Beaumont
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NO. 09-23-00170-CV
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IN RE DANNY BURKETT
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Original Proceeding
253rd District Court of Liberty County, Texas
Trial Cause No. CV1611135
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MEMORANDUM OPINION
In a petition for a writ of mandamus, Danny Burkett challenges the trial
court’s authority to revoke a probation order and order Burkett to serve a sentence
on a judgment for criminal contempt. We stayed a scheduled hearing on a motion to
revoke Burkett’s probated sentence and obtained a response from the Real Parties in
Interest, Jessie Favors and Deana Miller. We conditionally grant mandamus relief.
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Background
In 2017, in a property dispute, the trial court granted permanent injunctive
relief to Jessie Favors and Deana Miller, ruled Favors and Miller were entitled to a
non-exclusive ingress and egress easement, and enjoined Danny Burkett from
impeding access to the easement. See Burkett v. Favors, No. 09-18-00046-CV, 2018
WL 5986424, at *2 (Tex. App.—Beaumont Nov. 15, 2018, pet. denied) (mem. op.).
“In addition, the trial court ordered ‘that gates shall be placed on each end of the
non-exclusive easement and … the gates will be closed each time after Danny
Burkett enters or leaves the easement.’” Id. Burkett appealed the judgment, which
this Court affirmed. Id. at 3.
On September 2, 2021, the trial court signed its Order on Fifth Amended
Motion for Enforcement and Contempt. The trial court adjudged Danny Burkett to
be in contempt of court for 551 separate violations of the 2017 judgment for
deliberately failing to close and lock the entrance to the gate on 551 different dates,
from July 18, 2018 to August 29, 2021. The trial court ordered Burkett to serve one
day in jail for each violation for a total of 551 days. The trial court ordered Burkett
to serve 30 consecutive days beginning September 3, 2021, in the Liberty County
Jail, “and the remaining sentence will be probated as long as Danny Burkett follows
this order.” The trial court awarded Favors and Miller $1,100 “as damages” and
$11,426.78 in “attorney fees”, “all to bear interest of 5% per annum until paid.” The
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trial court ordered Burkett to appear at the Liberty County Jail on Friday, September
3, 2021, to begin his sentence. The trial court’s order provided that the remaining
521 days “will be probated” as long as Danny Burkett complies with the order as
follows:
The parties announced on record that they agreed to the
following:
1. The parties agree that Deana Miller, Jessie Favors, and Danny
Burkett will close and lock the gate with a chain and lock each time
they go through whether entering or leaving the property.
2. Danny Burkett will be responsible for supplying his guest with
a key to unlock and lock the gate.
3. Danny Burkett will be responsible for each of his guest that
enter or leave through the gate for closing and locking the gate.
“IT IS THEREFORE ORDERED, ADJUDGED, AND
DECREED that the Plaintiff[s’] Motion to Enter Rule 11 Agreement is
hereby GRANTED.
SIGNED on October 13, 2020.
IT IS FURTHER ORDERED that gates shall be placed on each
end of the non-exclusive easement and that the gates will be closed each
time after Danny Burkett enters or leaves the easement.”
In August 2022, the trial court held a hearing on a Motion to Enforce and
Request for Contempt. The trial court found that Burkett continued to violate the
terms and conditions of the September 2021 contempt judgment, ordered that
Burkett be confined in the Liberty County Jail for one day for each of the violations
31-180, which totals 150 days in county jail and provided the time would be served
by spending 75 consecutive weekends in jail. The trial court ordered the sentence
to begin on September 2, 2022, and end when Burkett “has served 150 total days for
violations 31-180. The court shall continue to probate violations 181-551.”
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On April 4, 2023, Favors and Miller filed a Motion for Revocation of Probated
Sentence. They alleged Burkett “failed to complete the probated jail sentence[,]”
having served only 14 days, and asked that Burkett be held in contempt for each
separate violation for failing to appear at the Liberty County Jail on 20 different
weekends. In addition, they asked the trial court to revoke the probated sentence and
order Burkett to serve the remaining 537 days in the Liberty County Jail.
Analysis
In his mandamus petition, Burkett contends the trial court abused its discretion
in September 2021: (1) when it sentenced Burkett to 551 days in jail without
affording Burkett the right to a jury trial; (2) when it awarded Favors and Miller
damages, attorneys fees and interest in the contempt order; and (3) when it ordered
an infinite probation period. Burkett argues he has no adequate remedy at law
because contempt orders are not appealable.
Favors and Miller argue habeas corpus provides the exclusive method to
challenge a contempt judgment. Generally, a petition for writ of habeas corpus is the
only method for attacking an order of contempt. In re Reece, 341 S.W.3d 360, 370
(Tex. 2011) (orig. proceeding). However, “[c]ontempt orders that do not involve
confinement cannot be reviewed by writ of habeas corpus, and the only possible
relief is a writ of mandamus.” In re Long, 984 S.W.2d 623, 625 (Tex. 1999) (orig.
proceeding).
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This case lies within a gray area of the type of cases reviewable by mandamus.
A habeas applicant must present proof of confinement. See Tex. R. App. P.
52.3(k)(1)(D). Burkett cannot produce a certificate of confinement to support a
habeas petition because he is not in custody. The mandamus record does not include
an outstanding capias and Burkett is not presently subject to a commitment order
because the trial court ordered Burkett to be released from jail. A motion to revoke
probation has been filed, however, placing Burkett at risk of an imminent loss of
liberty. A court may exercise mandamus jurisdiction when the relator is at liberty
under a probation order but is not presently subject to a tangible restraint of liberty.
See In re Johnston, No. 07-22-00177-CV, 2022 WL 17821583, at *1 (Tex. App.—
Amarillo Dec. 20, 2022, orig. proceeding) (mem. op.). Based on this record, we
reject Favor’s and Miller’s argument that Burkett may only complain about the trial
court’s order by filing a request for habeas relief.
Here, Burkett challenges the validity of a contempt order signed in September
2021. Given the substantial amount of time that has elapsed since the trial court
signed the order Burkett challenges, we must determine whether we should
summarily deny the mandamus petition under the doctrine of laches. See Rivercenter
Assocs. v. Rivera, 858 S.W.2d 366, 367 (Tex. 1993) (orig. proceeding).
A trial court’s contempt power does not depend on statutory authority, as trial
courts have an inherent power to hold a party in contempt as an essential element of
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exercising their judicial independence and authority. Ex parte Browne, 543 S.W.2d
82, 86 (Tex. 1976). “Although mandamus is not an equitable remedy, its issuance is
largely controlled by equitable principles.” Id. A court may deny mandamus relief
where the record reveals no justification for the relator’s delay in bringing a
mandamus petition. Id. However, courts generally decline to apply equitable
doctrines such as laches when the mandamus petition challenges a void order. In re
Valliance Bank, 422 S.W.3d 722, 728 (Tex. App.—Fort Worth 2012, orig.
proceeding). Accordingly, we will consider whether the September 2021 contempt
order is void, as Burkett contends.
The trial court sentenced Burkett to 551 days in jail, even though the trial court
then probated Burkett’s sentence. The sentence the trial court assessed exceeds the
maximum permissible sentence available for contempt. See Tex. Gov’t Code Ann.
§ 21.002(b) (“The punishment for contempt of a court other than a justice court or
municipal court is a fine of not more than $500 or confinement in the county jail for
not more than six months, or both such a fine and confinement in jail.”).
A charge for which confinement may exceed six months is a serious charge
of criminal contempt on which the alleged contemnor has a constitutional right to a
jury trial. Ex parte Sproull, 815 S.W.2d 250, 250 (Tex.1991) (orig. proceeding).
When the contemnor is sentenced to confinement for no more than six months for
each of several acts, the punishment is serious if the sentences must be served
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consecutively and add up to more than six months. In re Hammond, 155 S.W.3d
222, 226 (Tex. App.—El Paso 2004, orig. proceeding). A contempt order is void if
it is beyond the power of the court to enter it, or if it deprives the relator of liberty
without due process of law. In re Levingston, 996 S.W.2d 936, 937-38 (Tex. App.—
Houston [14th Dist.] 1999, orig. proceeding). The appellate court will not presume
that the contemnor waived his right to a jury trial from a silent record. Sproull, 815
S.W.2d at 250. Here, the mandamus record does not show that the trial court
informed Burkett of his right to a jury trial or that Burkett affirmatively waived that
right. Burkett neither received a jury trial nor affirmatively waived that right.
Consequently, we conclude the trial court’s September 2021 order is void.
Favors and Miller argue the 551-day sentence is permissible under section
21.002(h)(2) of the Government Code, which provides that a person may not be
confined for contempt of court longer than the lesser of 18 months or the period from
the date the person complies with the court order that was the basis of the finding of
civil contempt. See Tex. Gov’t Code Ann § 21.002(h)(2). However, the trial court’s
contempt judgment orders Burkett confined for a definite period for violating the
terms of a permanent injunction. See In re Reece, 341 S.W.3d at 365 (civil contempt
is remedial and coercive in nature and the contemnor carries the keys to the jail cell,
while criminal contempt is punitive in nature and the contemnor is being punished
for some completed act which affronted the dignity and authority of the court). We
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conclude the September 2021 order is a judgment of criminal contempt, not civil
contempt.
“An appellate court should issue a writ of mandamus only if the contempt
judgment is void, and not if it is merely voidable.” In re Johnston, 2022 WL
17821583, at *2. A contempt judgment is void if it is beyond power of the court or
violates due process. In re Office of the Att’y Gen., 422 S.W.3d 623, 628 (Tex. 2013)
(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 Baker, 99 S.W.3d 230, 232 (Tex. App.—Eastland 2003, orig.
proceeding). A contempt order that violates the contemnor’s constitutional right to
trial by jury is void. Ex parte Casillas, 25 S.W.3d 296, 299 (Tex. App.—San Antonio
2000, orig. proceeding).
Conclusion
We conclude the trial court clearly abused its discretion by signing a void
order and that the relator lacks an adequate remedy by appeal. We conditionally
grant mandamus relief. We are confident that the trial court will vacate its September
2, 2021 Order on Fifth Amended Motion for Enforcement and Contempt and its
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August 31, 2022 Order of Revocation and Sentence.1 The writ of mandamus shall
issue only if the trial court fails to comply.
PETITION CONDITIONALLY GRANTED.
PER CURIAM
Submitted on June 15, 2023
Opinion Delivered August 24, 2023
Before Horton, Johnson and Wright, JJ.
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We caution all parties that the permanent injunction is still in force and
remind the parties that any violations of the permanent injunction may be enforced
through contempt proceedings in the trial court that comply with due process.
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