Henry Harren v. State

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN NO. 03-99-00752-CR Henry Harren, Appellant v. The State of Texas, Appellee FROM THE COUNTY COURT AT LAW NO. 3 OF TRAVIS COUNTY NO. 497755, HONORABLE DAVID F. CRAIN, JUDGE PRESIDING A jury found appellant Henry Harren guilty of assault by offensive contact, after which the court imposed a fine of $200. See Tex. Penal Code Ann. § 22.01(a)(3) (West Supp. 2000). Harren, a lawyer who represents himself on appeal, contends the trial court erred by overruling his motion to dismiss on double jeopardy grounds and by erroneously instructing the jury regarding the justifiable use of force. We will overrule these contentions and affirm the conviction. Harren argues that his prosecution in this cause violated the Fifth Amendment double jeopardy protection against multiple prosecutions for the same offense. See U.S. Const. amend. V; Ex parte Rhodes, 974 S.W.2d 735, 738 (Tex. Crim. App. 1998). Harren urges that he was previously tried, convicted, and punished for the same offense in his former wife's successful application for a protective order in the Houston County district court having continuing jurisdiction over the Harrens' divorce. The information alleged that on February 8, 1998, Harren "cause[d] bodily injury to Joyce Watson by pushing [her] on and about the torso with [his] hand." See Tex. Penal Code Ann. § 22.01(a)(1) (West Supp. 2000). The court's charge authorized Harren's conviction for this offense and for the lesser offense of causing offensive physical contact with Watson. See id. § 22.01(a)(3). Harren chose to prosecute this appeal without a reporter's record, although the exhibits introduced at trial are contained in the clerk's record. Among the exhibits is defense exhibit one, the reporter's record from the hearing on the application for protective order. At that hearing, Watson testified that appellant shoved her during an incident that arose when she and her daughter, Harren's former wife, went to Harren's house on February 8, 1998, to pick up the Harrens' daughters following a visitation. A copy of the protective order issued by the Houston County district court was attached to Harren's motion to dismiss and appears in the clerk's record, but was not introduced in evidence. Despite the defects in the record, we will assume that a protective order was issued, and that the finding of family violence in the order was based on the same conduct for which Harren was tried and convicted in this cause. Harren relies on United States v. Dixon, 509 U.S. 688 (1993), as interpreted in Ex parte Rhodes. See Rhodes, 974 S.W.2d at 738-39. The issue in Dixon was "whether prosecution for criminal contempt based on violation of a criminal law incorporated into a court order bars a subsequent prosecution for the criminal offense." See Dixon, 509 U.S. at 695. The court answered in the affirmative. See id. at 696. Rhodes, applying Dixon, held that a prosecution for interference with child custody was jeopardy barred because the defendant had previously been held in criminal contempt for the same conduct. See Rhodes, 974 S.W.2d at 742. Dixon and Rhodes are readily distinguishable from the cause before us because Harren does not base his double jeopardy claim on a previous conviction for criminal contempt. As the name implies, the purpose of a protective order is to protect against future acts of family violence. Although a finding that family violence has occurred is a condition precedent to the issuance of a protective order, such a finding is not alone sufficient. Instead, the court must also find that family violence is likely to occur in the future. See Tex. Fam. Code Ann. § 81.001 (West Supp. 2000) ("A court shall render a protective order . . . if the court finds that family violence has occurred and is likely to occur in the future."). (1) If such a finding is made, the court is then authorized to issue an order designed to prevent future violence. See id. §§ 85.021, .022. The Houston County protective order contains a finding that Harren committed an act of family violence on February 8, 1998, and that family violence is likely to occur in the future. Accordingly, the order prohibits Harren from committing future acts of family violence and orders him to complete courses on family violence and anger management. See id. § 85.022. Both Harren and his former wife are prohibited from engaging in specified "abusive behavior" toward the other. See id. The order also contains provisions relating to Harren's visitation privileges with his children. See id. § 85.021. The order contains no provision expressly or impliedly punishing Harren for the assault against Watson. The issuance of a protective order following an act of family violence is not akin to a conviction for criminal contempt for violating a court order. (2) The Houston County proceeding was not equivalent to a prosecution for the assault against Watson, and the protective order was not a punishment for that assault. See Tharp v. State, 935 S.W.2d 157, 161 (Tex. Crim. App. 1996) (administrative driver's license suspension for failing to pass intoxication test is remedial rather than punitive, and does not bar prosecution for driving while intoxicated). Harren's double jeopardy claim was properly overruled by the trial court. Point of error one is overruled. Harren's second point of error is that the trial court improperly instructed the jury regarding the use of force in self-defense. See Tex. Penal Code Ann. § 9.31(a) (West Supp. 2000). Harren does not claim to have objected to the instruction, and there is nothing in the record before us to indicate that he did. Charge error to which no objection is made warrants reversal only if the error was so egregious and created such harm that the accused did not have a fair and impartial trial. See Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985) (op. on reh'g). "[T]he actual degree of harm must be assayed in light of the entire jury charge, the state of the evidence, including the contested issues and weight of probative evidence, the argument of counsel and any other relevant information revealed by the record of the trial as a whole." Id. As previously noted, this appeal is before us without a reporter's record. Under the circumstances, we cannot determine whether the court's charge was erroneous in the manner alleged, much less whether the error, if any, caused Harren egregious harm. See Callahan v. State, 814 S.W.2d 420, 423 (Tex. App.--Houston [14th Dist.] 1991, pet. ref'd). Point of error two is overruled. The judgment of conviction is affirmed. J. Woodfin Jones, Justice Before Justices Jones, Yeakel and Patterson Affirmed Filed: June 15, 2000 Do Not Publish 1. Among other things, "family violence" means "an act by a member of a family or household against another member of the family or household that is intended to result in physical harm, bodily injury, assault, or sexual assault or is a threat that reasonably places the member in fear of imminent physical harm, bodily injury, assault or sexual assault." See id. § 71.004. 2. Harren might have a colorable claim under Dixon and Rhodes if he were to be held in criminal contempt for violating the protective order and then prosecuted for a criminal offense based on the same conduct. rdy barred because the defendant had previously been held in criminal contempt for the same conduct. See Rhodes, 974 S.W.2d at 742. Dixon and Rhodes are readily distinguishable from the cause before us because Harren does not base his double jeopardy claim on a previous conviction for criminal contempt. As the name implies, the purpose of a protective order is to protect against future acts of family violence. Although a finding that family violence has occurred is a condition precedent to the issuance of a protective order, such a finding is not alone sufficient. Instead, the court must also find that family violence is likely to occur in the future. See