Ex Parte Jennifer Elaine Sisk

Affirmed and Memorandum Opinion filed April 28, 2011. In The Fourteenth Court of Appeals NO. 14-10-00870-CR Ex Parte Jennifer Elaine Sisk On Appeal from the 185th District Court Harris County, Texas Trial Court Cause No. 1254747 MEMORANDUM OPINION Jennifer Elaine Sisk appeals from the trial court’s denial of her application for writ of habeas corpus. She has been indicted for interference with child custody and asserts that this prosecution violates the constitutional prohibition against double jeopardy. We affirm. Background In May 2002, the 309th District Court entered an order naming appellant joint managing conservator of her minor child along with the child’s father, David Lee Foster. In this order, the court also granted appellant the right to establish the primary residence of the child but restricted such residence to within Harris County, Texas or other counties contiguous thereto. On November 12, 2009, appellant moved with her minor child to Arlington, Texas. Subsequently, on November 20, Foster filed a Motion for Enforcement by Contempt, alleging that appellant had violated the 309th District Court’s 2002 order by (1) withdrawing the child from school on August 24, 2009 without Foster’s agreement, and (2) removing the child from Harris or contiguous counties on November 12, 2009 for the purpose of changing the child’s primary residence. Also in November 2009, with appellant’s permission, Foster retrieved the child from Arlington and took her back to Harris County, apparently for the Thanksgiving holiday. At some point in December 2009, appellant retrieved the child from Harris County. She and the child reportedly returned to Arlington for a time before moving to Orange County, Florida.[1] A hearing was scheduled on the motion for enforcement in the 309th District Court for December 17, 2009, but appellant failed to appear for that hearing. A hearing was subsequently held on August 4, 2010, for which appellant returned to Harris County with the child. At the conclusion of this hearing, the court held appellant in “criminal contempt” for two violations of its May 2002 order: (1) withdrawing the child from school on August 24, 2009 without Foster’s agreement, and (2) removing the child from Harris or contiguous counties on November 12, 2009 for the purpose of changing the child’s primary residence. As punishment for each violation, the court ordered appellant confined in jail for 120 days (to be served concurrently) with credit for 30 days. The court then suspended the confinement provided appellant (1) comply with the court’s orders, (2) pay costs of $440 in monthly installments, and (3) pay $2,500 in attorney’s fees to Foster’s attorney, also in monthly installments. On March 3, 2010, a criminal complaint was filed against appellant for interference with child custody. An indictment followed on May 12, 2010, specifically alleging that appellant: on or about December 17, 2009, did then and there unlawfully, intentionally, and knowing [sic] take and retain [the child], hereafter styled the Complainant, knowing that his [sic] taking and retention violates the express terms of a judgment and order of a court disposing of the Complainant’s custody by moving the Complainant out of Harris County, Texas or any surrounding continuous [sic] county. [Emphasis omitted.] In her application for writ of habeas corpus, appellant contended that the State’s prosecution of her for interference with child custody violated the constitutional prohibition against double jeopardy because she had already been convicted of and punished for removing the child from Harris County in violation of the custody order. At the conclusion of the hearing on appellant’s application, the trial judge explained that because the prior contempt order specifically referenced two allegations of contempt, occurring on August 24, 2009, and November 12, 2009, and the indictment in the case before her alleged conduct occurring on December 17, 2009, the indictment did not implicate double jeopardy concerns. On this basis, the trial court denied habeas corpus relief. Appellant raises the same basic arguments in this interlocutory appeal. Governing Law An applicant for writ of habeas corpus bears the burden of proving his or her allegations by a preponderance of the evidence. Ex parte Legrande, 291 S.W.3d 31, 35 (Tex. App.—Houston [14th Dist.] 2009, pet. ref’d). We review a trial court’s denial of habeas corpus relief for an abuse of discretion, and consider the facts in the light most favorable to the court’s ruling. Ex parte Wheeler, 203 S.W.3d 317, 324 (Tex. Crim. App. 2006). We afford almost total deference to the trial court’s determination of historical facts if supported by the record, especially when those factual findings rely upon an evaluation of credibility and demeanor. Legrande, 291 S.W.3d at 35-36. We apply the same deference in reviewing the trial court’s application of law to fact questions, if resolution of those questions depends upon an evaluation of credibility and demeanor. Id. at 36. However, if the outcome of those ultimate questions turns upon the correct application of legal standards, we review the court’s determination de novo. Id. The Fifth Amendment to the United States Constitution guarantees that a person shall not “be subject for the same offence to be twice put in jeopardy of life or limb.” U.S. Const. amend. V. This “Double Jeopardy Clause” prohibits a second prosecution for the same offense, after an acquittal or a conviction, as well as the imposition of multiple punishments for the same offense. Bigon v. State, 252 S.W.3d 360, 369 (Tex. Crim. App. 2008) (citing North Carolina v. Pearce, 395 U.S. 711, 717 (1969)).[2] Appellant’s Arguments Appellant contends that the current prosecution against her, based on the May 12, 2010 indictment, violates the Double Jeopardy Clause because it seeks punishment for an offense that she has already been convicted of and assessed punishment for, specifically in the 309th District Court’s contempt order. Appellant cites Ex parte Rhodes for the proposition that a person who has been held in criminal contempt in a civil court cannot be prosecuted based on the same conduct in a criminal court. 974 S.W.2d 735 (Tex. Crim. App. 1998) (holding that the Double Jeopardy Clause barred prosecution of parent for interference with child custody due to his previous criminal contempt conviction which was based on same conduct of taking child to live in another country without court approval). She maintains that the facts of this case present the same fact scenario as occurred in Rhodes. She further asserts that the prior contempt proceedings were not limited to conduct occurring on August 24 and November 12, 2009, but also covered the alleged conduct occurring on or around December 17, 2009, on which the indictment was based. We do not agree with either of appellant’s contentions: that Rhodes is necessarily controlling or that the alleged conduct occurring around December 17 was covered by the contempt proceedings. We will discuss each point in turn. Applicability of Ex parte Rhodes In Rhodes, a divorce decree ordered that the child of the marriage must reside in Harris County and enjoined both parents from changing the child’s county of residence without prior court approval. Id. at 736. Without such approval, the father removed the child from Harris County and took the child first to Malaysia and later to Singapore. Id. at 735. Shortly after their return to the United States, the father was arrested and charged with interference with child custody; the mother then filed contempt proceedings in civil court, the father was found in contempt and punishment was assessed, and the father filed for a writ of habeas corpus in the criminal action. Id. at 735-36. The primary issue addressed by the Court in Rhodes was whether a contempt action initiated and litigated solely by a private party could constitute a prior prosecution for double jeopardy purposes. Id. at 737. Basing its decision on an analysis of United States Supreme Court precedent, the Court held that a prior contempt proceeding brought by a private party could constitute a prior prosecution for double jeopardy purposes, and consequently, under the facts of that case, the subsequent prosecution was barred. Id. at 742. Rhodes is factually distinguishable from the current case, however, because Rhodes involved only a single act of changing the child’s county of residence without prior approval; whereas, the indictment here charges appellant with a separate act in violation of the custody order than the ones at issue in the contempt proceeding. As stated, the contempt order specifically referenced two allegations of contempt, one occurring on August 24, 2009 and another on November 12, 2009, while the indictment alleges specific conduct occurring on December 17, 2009. Although appellant attempts to draw an analogy between the cases by pointing out that the defendant in Rhodes moved the child to two places (Malaysia and Singapore), and appellant moved her child to two places (Arlington and Florida), the fact that the child’s residence may have changed again after she was removed from Harris County played no role in the Court of Criminal Appeals’ analysis in Rhodes. Id. at 738-42. Furthermore, appellant acknowledges that her child returned to Harris County between the occurrence of the conduct addressed in the contempt order and the conduct alleged in the indictment, but in Rhodes, there was no indication that the child had been twice removed from the area of geographical restriction. Thus, Rhodes does not control resolution of this case. Contempt Motion and Order Appellant additionally argues that the contempt proceedings covered the entirety of her conduct from the time she removed the child from the Harris County area on November 12, 2009 until the time she returned the child in August 2010. She therefore maintains that she has already been prosecuted for any conduct alleged to have occurred in December 2009. She bases this argument on language in Foster’s Motion for Enforcement by Contempt, wherein he alleged that appellant “will continue to fail to comply with the order [therefore] Movant requests that Respondent be held in contempt, jailed and fined for each failure to comply with the order of the Court from the date of this filing to the date of the hearing on this motion.” Without more, this vague, generic allegation that appellant would continue to violate the order in unspecified future ways is not sufficient to demonstrate that appellant was prosecuted in the contempt proceeding for specific conduct occurring around December 17, 2009. The record before us does not contain the reporter’s record from the contempt proceedings, and the contempt order itself clearly listed two dates on which specific conduct occurred as the basis for the punishment assessed. Thus, appellant has not demonstrated that the alleged conduct occurring around December 17 was covered in the prior contempt proceedings. Resolution The State urges us to utilize the Blockburger test for determining when a prosecution under one statute is barred on double jeopardy principles due to a prior prosecution under a different statute. Blockburger v. United States, 284 U.S. 299, 304 (1932) (“[W]here the same act . . . constitutes a violation of two . . . provisions, the test . . . is whether each provision requires proof of a fact which the other does not.”). However, we need not go that far. As the Court of Criminal Appeals has explained, the Blockburger test does not apply when there are different offenses alleged to have occurred on different days. Ex parte Hawkins, 6 S.W.3d 554, 557 n.8 (Tex. Crim. App. 1999). And that is the case here. The contempt proceedings involved specific conduct occurring on August 24 and November 12, 2009; the indictment alleges specific conduct occurring on or around December 17 (“did then . . . take and retain”).[3] Thus, the prohibition against double jeopardy is not implicated. The trial court did not err in denying the application for writ of habeas corpus. Additional Arguments go to Merits Appellant’s arguments further raise the question of whether her removal of the child from Harris County in December 2009—after the child allegedly visited for the Thanksgiving holiday—was in fact or law a violation of the geographical residential limitation in the custody order. Appellant suggests that removing the child from the Harris County area a second time in December 2009 did not again violate the residential restriction after the child’s residence already had been moved beyond the geographical limitation in November 2009. This argument, however, goes to the merits of the State’s case against appellant, an issue that is beyond the scope of this pretrial habeas corpus proceeding. We take no position on the legal or factual question of whether appellant’s conduct on or around December 17, 2009 violated the custody order. See Armstrong v. State, 805 S.W.2d 791, 794 (Tex. Crim. App. 1991) (“[T]he Court[s] of Appeals are without authority to render advisory opinions.”). We affirm the trial court’s denial of appellant’s writ of habeas corpus. /s/ Martha Hill Jamison Justice Panel consists of Justices Brown, Boyce, and Jamison. Do Not Publish — Tex. R. App. P. 47.2(b). [1] At a habeas corpus hearing, appellant testified that she retrieved the child from Harris County around December 7 or 8, 2009, and then moved to Florida on December 18. [2] Although appellant listed both the Fifth Amendment and article I, section 14 of the Texas Constitution as bases for her double-jeopardy claims, she does not allege that the state provision affords her any greater protection than does the federal provision. See In re R.J.R., 281 S.W.3d 43, 50 (Tex. App.—El Paso 2005, no pet.) (reviewing double jeopardy claims only under Fifth Amendment because appellant did not allege any difference between state and federal constitutional provisions). [3] It is important to note that the State does not allege in its indictment that appellant violated the custody order by continuing to maintain the child’s residence outside of the proscribed geographical area on December 17; it alleges she took or moved the child out of the area around that date in violation of the custody order. Put simply, the State alleges a distinct and separate offense occurring on a later date.