in Re: Shannon Luster, Relator

NO. 07-02-0437-CV IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TEXAS AT AMARILLO PANEL C NOVEMBER 20, 2002 ______________________________ EX PARTE SHANNON RENEE LUSTER, RELATOR _________________________________ Before QUINN and REAVIS and JOHNSON, JJ. By this original proceeding, relator Shannon Renee Luster seeks a writ of habeas corpus securing a release from confinement ordered by the trial court upon hearing a motion for contempt. By order dated October 25, 2002, this Court granted Shannon temporary relief upon making a personal recognizance bond pending determination of this proceeding. Now, after submission, we order her discharged from custody for the reasons expressed herein without prejudice to future enforcement proceedings. The underlying suit is a divorce proceeding instituted by real party in interest Chris Luster seeking a divorce from Shannon and custody of their minor child. (1) William Darell Luster and Lynn Lee Luster (paternal grandparents) intervened in the divorce proceeding seeking conservatorship and temporary custody of the minor child and other relief. Before rendition of any orders, pursuant to Chris's motion for nonsuit, the trial court dismissed the proceeding. However, the trial court later signed temporary orders granting possession of the child to the paternal grandparents. Due to Shannon's alleged inability to comply with the trial court's temporary orders, by order dated October 21, 2002, she was found to be in violation of a writ of habeas corpus requiring her to produce the minor child and held in contempt. The trial court ordered Shannon's confinement in the Carson County Jail until she produced the child to the court or to the sheriff. At the hearing on the paternal grandparents' petition for writ of habeas corpus, Shannon offered certified copies of pleadings and orders from a proceeding in Oklahoma instituted by the child's maternal grandparents seeking guardianship of the child. However, the trial court refused to admit the certified copies into evidence. Shannon's tender of documents per her bill of exception included certified copes of (1) a Petition for Letters of Guardianship filed October 4, 2002, alleging, among other things, that the child had been in their custody in Oklahoma since July 2002, (2) an Application for Emergency Order, (3) an Order for Hearing, and (4) an Order signed October 7, 2002, providing: Now, on this 7th day of October 2002, this matter comes on before the undersigned Judge of the District Court, upon the Application of the Petitioner for an Emergency Order. The Court, after being well and truly advised in the premises, and upon hearing evidence of Petitioner sworn in open court, the Court finds as follows: That an emergency exists based upon the situation. IT IS THEREFORE ORDERED, ADJUDGED AND DECREED by the Court that the custody of the minor child is to the Petitioner until further order of this Court. IT IS FURTHER ORDERED, ADJUDGED AND DECREED by the Court that the [petitioner] may enlist the assistance of any law enforcement officials for the State of Oklahoma or County of McIntosh in the execution of this Order. (Emphasis added). Shannon presents six issues in support of her petition for writ of habeas corpus. However, because our disposition of issue five pretermits our consideration of the remaining issues, we limit our consideration to her contention that the trial court erred in failing to allow certified copies of the Oklahoma orders in pleadings on file in the Oklahoma case to be entered into evidence at her hearing on the contempt motion and writ of habeas corpus. By their response, the paternal grandparents now concede that the trial court's exclusion of the certified copies of pleadings and orders of the Oklahoma proceeding was error. At the contempt hearing, relator contended, as she does here, that she was deprived of the evidence necessary to demonstrate that enforcement of the Texas order by contempt placed her in a dilemma because her compliance with the Texas order would cause her to violate the Oklahoma order, which, according to the last paragraph, was self-executing by Oklahoma law enforcement officials. In this original habeas corpus proceeding, we do not weigh the evidence offered, but instead accord to the trial court the right to judge the witnesses' credibility and the testimonial weight. See Ex parte Elmore, 161 Tex. 585, 342 S.W.2d 558, 561 (1961) (orig. proceeding); Ex parte Karr, 663 S.W.2d 534, 538 (Tex.App.--Amarillo 1983, no writ) (orig. proceeding). As stated in Ex parte Roan, 887 S.W.2d 462, 463 (Tex.App.--Dallas 1994, no writ) (orig. proceeding), we do not review the sufficiency of the evidence to support the trial court's action. Where it is not within the power of a person to perform the act which alone will purge him of contempt, the court is without power to imprison him for an indefinite term as punishment for an offense already committed. See Ex parte De Wees, 146 Tex. 564, 210 S.W.2d 145, 147 (1948) (orig. proceeding). A presumption exists that the relator has the ability to perform a court's judgment; however, it is rebuttable by evidence to the contrary. Ex parte Grimes, 443 S.W.2d 250, 252 (Tex. 1969) (orig. proceeding). Shannon was entitled to introduce the evidence along with whatever evidence she had to overcome the presumption. For Shannon to be entitled to the habeas corpus relief, the trial court's order must be void, either because it was beyond the power of the court or because it deprived her of liberty without due process of law. Ex parte Barnett, 600 S.W.2d 252, 254 (Tex. 1980). Involuntary inability to comply with an order is a valid defense to criminal contempt. Ex parte Chambers, 898 S.W.2d 257, 261 (Tex. 1995). Thus, Shannon was entitled to introduce the certified copies of the Oklahoma documents into evidence for consideration by the trial court. We hold that the error in excluding the evidence denied her due process of law. Without expressing any opinion as to the other issues presented by Shannon, we grant the writ of habeas corpus and order Shannon released from custody without prejudice to future enforcement proceedings. Accordingly, Shannon Renee Luster is ordered discharged from custody and she and her sureties are ordered released from the bond executed to secure her interim release from custody. Don H. Reavis Justice Do not publish. 1. The underlying proceeding in the 100th District Court of Carson County bears cause number 9204 and is styled In the Matter of the Marriage of Christopher Luster and Shannon Renee Luster, and In the Interest of Christyn Shanae' Luster, A Minor Child. g 2 Accent 1"/> NOS. 07-10-00122-CR, 07-10-00123-CR, 07-10-00171-CR and 07-10-00172-CR IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TEXAS AT AMARILLO PANEL A MAY 4, 2011 GREGORIO RODRIGUEZ, APPELLANT v. THE STATE OF TEXAS, APPELLEE FROM THE COUNTY COURT AT LAW NO. 2 AND THE 137TH DISTRICT COURT OF LUBBOCK COUNTY; NOS. 2009-455,818, 2009-458,190, 2009-425,597, 2009-422,825; HONORABLE CECIL PURYEAR, JUDGE Before CAMPBELL and HANCOCK and PIRTLE, JJ. MEMORANDUM OPINION In each of these four appeals, appellant Gregorio Rodriguez appeals his conviction on an open plea of guilty and resulting sentence. Offenses committed on December 21, 2008: In appellate case number 07-10-0172-CR, appellant was convicted of evading arrest or detention with a vehicle and sentenced to 18 months in a state jail facility;[1] In appellate case number 07-10-0122-CR, appellant was convicted of possession of marijuana of less than two ounces in a drug free zone and sentenced to 12 months in the Lubbock County Jail.[2] Offenses committed on October 25, 2009: In appellate case number 07-10-0171-CR, appellant was convicted of possession of a controlled substance listed in penalty group 1, cocaine of less than one gram and sentenced to 24 months in a state jail facility;[3] In appellate case number 07-10-0123-CR, appellant was convicted of driving while intoxicated and sentenced to 6 months in the Lubbock County Jail.[4] In each case, appellant’s court-appointed appellate attorney has filed a motion to withdraw from representation supported by an Anders brief.[5] Agreeing with counsel’s conclusion that the record fails to show any arguably meritorious issue capable of supporting an appeal, we grant the motion to withdraw in each case and affirm the trial court’s judgments. Punishment hearing testimony showed that on December 21, 2008, a police officer saw a vehicle driving erratically. The officer attempted a traffic stop. As the officer followed the vehicle, he saw a person leap from the vehicle while it remained in motion. The vehicle then jumped a curb, knocked down a fence, and collided with a parked vehicle in a driveway. The location of the accident was within 1,000 feet of a public school. When the officer entered the passenger compartment to turn off the ignition and place the transmission in park, he saw an open container of alcohol. An officer later also found a baggy containing what he believed was marijuana. Police eventually were able to identify appellant as the person operating the vehicle. Punishment evidence also showed that on October 25, 2009, a motor vehicle driven by appellant struck a police vehicle in the presence of officers. Appellant attempted to flee on foot, but was apprehended and arrested for evading arrest or detention. An officer detected the odor of alcohol on appellant’s breath and the odor of marijuana “on his person.” While searching appellant for weapons, the officer discovered a baggie containing what he believed was marijuana. In the officer’s opinion, appellant appeared intoxicated. He had difficulty standing and walking and was unresponsive to questions. The officer transported appellant to a holding facility. As appellant left the police vehicle, a clear plastic baggie containing a white powder fell from his pant leg. According to a field test, the substance was cocaine. This was later confirmed by the Texas Department of Public Safety Crime Laboratory. Appellant was charged by indictment or information with the four offenses, and entered guilty pleas to the charged offenses without a plea bargain agreement. A punishment hearing in each case was held the same day as the plea hearing. The trial court admonished appellant of the applicable ranges of punishment and determined he was a United States citizen. It also explained and determined appellant wished to waive the right to trial by jury and the right against self-incrimination. Two police officers gave the testimony we have summarized of the circumstances of the December 2008 and October 2009 offenses. Appellant presented two witnesses. A deacon testified of appellant’s church involvement over the preceding five months. The second witness, a relative of appellant, testified of his industry in the workplace, abstinence from alcohol, and family commitment. Following the close of evidence and arguments, the court sentenced appellant in each case. Appellant obtained trial court certification of the right of appeal and timely appealed. Thereafter, appellant’s appointed appellate counsel filed a motion to withdraw supported by an Anders brief. In the brief, he certifies to his diligent review of the record and his opinion under the controlling authorities and facts of the cases no reversible error or arguably legitimate ground for appeal exists. The brief discusses the procedural history of the case and the events at the plea hearing. Counsel discusses the applicable law and sets forth the reasons he believes no arguably meritorious issues for appeal exist. A letter to appellant from counsel, attached to counsel’s motion to withdraw, indicates that a copy of the Anders brief and the motion to withdraw were served on appellant, and counsel advised appellant of his right to review the record and file a pro se response. Johnson v. State, 885 S.W.2d 641, 645 (Tex.App.--Waco 1994, pet. refused). By letter, this court also notified appellant of his opportunity to submit a response to the Anders brief and motion to withdraw filed by his counsel. Appellant did not file a response. In conformity with the standards set out by the United States Supreme Court, we will not rule on the motion to withdraw until we have independently examined the record in each matter. Nichols v. State, 954 S.W.2d 83, 86 (Tex.App.--San Antonio 1997, no pet.). If we determine the appeal has arguable merit, we will remand it to the trial court for appointment of new counsel. Stafford v. State, 813 S.W.2d 503, 511 (Tex.Crim.App.1991). In the Anders brief, counsel concludes the appeal is frivolous. We have made an independent review of the entire record to determine whether arguable grounds supporting an appeal exist. See Penson v. Ohio, 488 U.S. 75, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988); Bledsoe v. State, 178 S.W.3d 824 (Tex.Crim.App. 2005). We find no arguable grounds supporting a claim of reversible error, and agree with counsel that the appeal is frivolous. Accordingly, we grant counsel’s motion to withdraw[6] in each case and affirm the judgments of the trial court. James T. Campbell Justice Do not publish. [1] A person commits the offense of evading arrest or detention if he intentionally flees a person he knows is a peace officer lawfully attempting to arrest or detain him. Tex. Penal Code Ann. § 38.04(a) (West Supp. 2010). The offense is a state jail felony if the actor uses a vehicle while in flight and the actor has not previously been convicted under Penal Code § 38.04. Tex. Penal Code Ann. § 38.04(b)(1)(B) (West Supp. 2010). [2] Possession of two ounces or less of marijuana is a Class B misdemeanor, Tex. Health & Safety Code Ann. § 481.121(b)(1) (West 2010), but increases to a Class A misdemeanor if committed within 1,000 feet of the real property of a school. Tex. Health & Safety Code Ann. § 481.134(f)(1) (West 2010). A Class A misdemeanor is punishable by confinement in jail for up to one year and/or a fine not to exceed $4,000. Tex. Penal Code Ann. § 12.21 (West 2003). [3] Possession of less than one gram of cocaine is a state jail felony. Tex. Health and Safety Code Ann. § 481.102(3)(D) (West 2010) (cocaine is a Penalty Group 1 controlled substance) and Tex. Health and Safety Code Ann. § 481.115(a),(b) (West 2010) (possession of less than one gram of cocaine is a state jail felony). A state jail felony is punishable by confinement in a state jail facility for any term of not more than two years or less than 180 days and a fine not to exceed $ 10,000. Tex. Penal Code Ann. § 12.35 (West 2010). [4] In the absence of facts not charged here, driving while intoxicated is a Class B misdemeanor. A person commits the offense of driving while intoxicated if the person is intoxicated while operating a motor vehicle in a public place. Tex. Penal Code Ann. § 49.04(a) (West 2003). [5] Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967) and In re Schulman, 252 S.W.3d 403 (Tex.Crim.App. 2008) (orig. proceeding). [6] Counsel shall, within five days after the opinion is handed down, send his client a copy of the opinion and judgment, along with notification of the defendant’s right to file a pro se petition for discretionary review. Tex. R. App. P. 48.4.