IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL B
JUNE 5, 2007
______________________________IN THE INTEREST OF M.D.J., M.D.J., AND M.D.J. _________________________________
FROM THE 69TH DISTRICT COURT OF MOORE COUNTY;
NO. 02-66; HON. DAVID L. GLEASON, PRESIDING _______________________________
Memorandum Order of Dismissal _______________________________
Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.
Michael Jones appeals from orders holding him in contempt and revoking his previously suspended commitment. He seeks to reverse the "contempt finding" and obtain his release by contending that he was denied due process and effective counsel at the hearing. We dismiss for want of jurisdiction.
An appellate court may not review a contempt order on direct appeal. Texas Animal Health Comm'n v. Nunley, 647 S.W.2d 951, 952-53 (Tex. 1983); In re B.C.C., 187 S.W.3d 721, 723 (Tex. App.-Tyler 2006, no pet.); Cadle Co. v. Lobingier, 50 S.W.3d 662, 671 (Tex. App.-Fort Worth 2001, pet. denied). Review occurs through either a petition for writ of habeas corpus or for writ of mandamus depending upon whether the complainant suffers confinement. Cadle Co. v. Lobingier, 50 S.W.3d at 671. Therefore, we lack jurisdiction to consider this appeal and dismiss it.
Brian Quinn
Chief Justice
nt has neither filed a pro se response nor moved for an additional extension.
In compliance with the principles enunciated in Anders, appellate counsel discussed three possible grounds for appeal. First, counsel discusses the sufficiency of the evidence of murder. Appellant was charged with intentionally and knowingly causing the death of John Mestas by stabbing him with a knife. See Tex. Pen. Code Ann. §19.02(b)(1) (Vernon 2003). The evidence shows, based on appellant's own testimony, that appellant was arguing with the victim, picked up a knife, stabbed the victim twice, and he subsequently died as a result of those wounds. Appellant also testified that immediately prior to the stabbing, 1) appellant slapped the deceased, 2) he told her she would not do so again, 3) she shoved him and asked him "what are you going to do," 4) he told her he would "fuck [her] up," blocked her way, and reached for a drawer where she knew a knife was kept, 5) she shoved the drawer closed, and 6) she grabbed her own knife off the bed, opened it up with both hands, and stabbed him twice. She admitted that at the time she stabbed him, the drawer with the knife in it was not open and the deceased had nothing in his hand. Appellant's own testimony is sufficient to sustain the conviction.
Second, counsel discussed whether appellant was entitled to an instruction on self-defense. A defendant is entitled to an instruction on self-defense if the issue is raised by the evidence, regardless of whether the evidence is strong, weak, unimpeached, or contradicted and regardless of what the trial court thinks of the credibility of the defense. Ferrel v. State, 55 S.W.3d 586, 591 (Tex. Crim. App. 2001). A person is justified in using force against another when and to the degree she reasonably believes the force is immediately necessary to protect herself against the other's use or attempted use of unlawful force. Tex. Pen. Code Ann. §9.31(a) (Vernon 2003). The evidence illustrated that appellant and the deceased had spent time drinking together for a number of years and often quarreled and had struck each other in the past when they had been drinking. Both appellant and the deceased had been drinking that day and there was testimony that the deceased was intoxicated. Appellant testified that at the moment she grabbed her knife, she was scared and was afraid the victim was going to get his knife out of the drawer. Further, when the deceased blocked her way and moved toward her, she panicked. Even if it could be said that this evidence was not sufficient to warrant the instruction, appellant received an instruction based on her theory of the case which was ultimately rejected by the jury. There was no reversible error.
Third, counsel discusses whether appellant was entitled to an instruction at the punishment phase on sudden passion. Counsel concludes the instruction was properly given even though appellant's own testimony "precluded the argument." There was evidence that the stabbing occurred suddenly but that the drinking and arguing between appellant and the victim had been going on for several hours. If the jury found appellant caused the death while under the influence of sudden passion, it could have assessed a punishment of confinement for not more than 20 years nor less than two years. Tex. Pen. Code Ann. §19.02(d) (Vernon 2003) (stating that if the defendant proves sudden passion by a preponderance of the evidence, the offense is a felony of the second degree).
The jury obviously did not believe that sudden passion had been proven. Even if the evidence did not support the instruction, we find no reversible error on the part of the trial court.
We have also conducted our own review of the record pursuant to Stafford v. State, 813 S.W.2d 503 (Tex. Crim. App. 1991) and have found no arguable issue warranting reversal.
Accordingly, counsel's motion to withdraw is granted, and the judgment of the trial court is affirmed.
Per Curiam
Do not publish.