IN THE
TENTH COURT OF APPEALS
No. 10-92-254-CR
LUGARDO VILLARREAL,
Appellant
v.
THE STATE OF TEXAS,
Appellee
From the 54th District Court
McLennan County, Texas
Trial Court # 92-64-C
DISSENTING OPINION
I disagree with the disposition of point one.
That the judicial process itself can emotionally traumatize children who are the victims of sexual assault is within the realm of common knowledge. Their natural vulnerability, reticence, and sensitivity makes that conclusion self-evident. Assuming, however, that the prosecutor's hyperbole—i.e., comparing the child-victim's emotional trauma from testifying in court to another act of rape by the defendant—is beyond the bounds of permissible argument, the question is whether the denial of Villarreal's motion for a mistrial is error. See Washington v. State, 822 S.W.2d 110, 118 (Tex. App.—Waco 1991), rev'd on other grounds, No. 65-92 (Tex. Crim. App. June 23, 1993). Whether the court acted properly depends upon the efficacy of the curative instruction. Did it remove the prejudicial effect of the improper argument? See Hernandez v. State, 819 S.W.2d 806, 820 (Tex. Crim. App. 1991). If it did, then there is no error in denying the mistrial, and no harm analysis is required. See id.
Ordinarily, an instruction to disregard will cure the harm from improper argument. Anderson v. State, 633 S.W.2d 851, 855 (Tex. Crim. App. 1982). In this particular instance, however, the majority holds that the argument is so extreme and manifestly improper, and thus so inflammatory, that the instruction did not erase its prejudicial effect on the punishment verdict. See Hernandez, 819 S.W.2d at 820. This is the precise point of my disagreement.
Unlike the constitutional right to remain silent, which is shielded from prosecutorial comment by a mandatory statute, the constitutional right to a jury trial enjoys no such protection. See Tex. Code Crim. Proc. Ann. art. 38.08 (Vernon 1979). Nor did the prosecutor's argument inject new facts into the case. Instead, the only reason given for holding the instruction ineffective is the following: "Testifying as a witness is the responsibility of every citizen, regardless of the odious nature of the evidence. To equate the fulfillment of this responsibility with being subject to rape is the type of argument that should be considered extreme and manifestly improper and thus so inflammatory that its prejudicial effect could not reasonably be removed from the minds of the jurors by the instruction given."
Apparently after only 35 minutes of deliberation, the jury convicted Villarreal of the aggravated sexual assault of a 9-year-old girl. Because he had no prior criminal record, the punishment on this first-degree felony ranged from 5 years to 99 years or life, plus a fine. See Tex. Penal Code Ann. § 12.32 (Vernon Supp. 1993). Acting solely on the evidence produced during the guilt-innocence phase, the jury assessed punishment at 25 years in prison.
The majority does not point to anything in the record indicating that the instruction was ineffective. To the contrary, that the jury heeded the court's instruction to disregard is best illustrated by the punishment verdict itself. It is measured to the evidence and certainly not excessive. Only if the 25-year sentence is excessive can one reasonably and fairly say that the instruction to disregard was fruitless. To find the punishment excessive under the facts of this case simply ignores the reality of the record and the common-sense view of the evidence by the jury.
Therefore, I disagree with the majority holding that the curative instruction was ineffective. As a result, I also disagree with their finding of error from the denial of the motion for a mistrial. I would hold that there is no error. Without error, no harm analysis is necessary. See Tex. R. App. P. 81(b)(2). Agreeing with the balance of the majority opinion, I would affirm Villarreal's conviction. For these reasons I dissent.
BOB L. THOMAS
Chief Justice
Dissenting opinion delivered and filed August 4, 1993
Publish
one month later. The order designates Daily as B.A.C.’s managing conservator and orders Clark to pay him child support of $203 per month.
The Attorney General filed a motion to enforce the October 1998 child support order in September 2001. The Attorney General agreed not to seek a contempt order, and the court rendered a judgment for the arrearages of $2,316 in December 2001.
Troxel filed a motion to enforce the child support provisions of the divorce decree in March 2002. The court granted her motion. The order recites the pertinent child support provisions of the divorce decree and references the 1991 arrearages judgment. The court found that Clark was “in arrears in the amount of $23,358 for the period January 25, 1991 through October 30, 1998.” Based on this finding, the court held Clark in contempt and sentenced him to the county jail for 150 days. The court suspended his commitment to jail and placed him on community supervision for ten years. The court ordered Clark to pay Troxel $150 per month to satisfy the arrearages. The court also granted Troxel a cumulative money judgment for the arrearages.
Clark sought review of the contempt order in this mandamus proceeding and by direct appeal. We have determined that this Court does not have jurisdiction to review the contempt order by direct appeal. In re B.A.C., No. 10-02-00243-CV, slip op. at 2, 2004 Tex. App. LEXIS 3018, at *2 (Tex. App.—Waco Mar. 31, 2004, no pet. h.).
ADEQUATE LEGAL REMEDY
To obtain mandamus relief, a petitioner must demonstrate: (1) the respondent committed a clear abuse of discretion or acted in violation of a duty imposed by law; and (2) the petitioner has no adequate legal remedy. In re Bass, 113 S.W.3d 735, 738 (Tex. 2003). Troxel contends that Clark’s adequate remedy in this case is by application for writ of habeas corpus. We agree, but rather than requiring Clark to file a third proceeding to seek review of the contempt order, we shall construe his mandamus petition as a petition for writ of habeas corpus.
According to the Supreme Court, “Contempt 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). Our research has disclosed only one decision of the Supreme Court in which habeas relief was granted a contemnor like Clark whose commitment was suspended. In Ex parte Brister, the contemnor was held in contempt, her commitment was suspended, and she was ordered to 60 days’ house arrest among other terms and conditions of the suspension. 801 S.W.2d 833, 834 (Tex. 1990) (orig. proceeding).
Several courts of appeals have held that contempt orders in which the trial court has suspended the commitment and placed the respondent on community supervision may or may not be reviewable by habeas depending on whether the conditions of community supervision include some form of “tangible restraint.” E.g., In re Ragland, 973 S.W.2d 769, 771 (Tex. App.—Tyler 1998, orig. proceeding). Thus in Ragland, the Tyler Court held that the requirement that the contemnor perform community service each week for a year was a sufficiently tangible restraint to justify habeas relief. Id. Other courts have reached similar conclusions. See In re Pierre, 50 S.W.3d 554, 558-59 (Tex. App.—El Paso 2001, orig. proceeding) (report monthly to community supervision officer, remain in county, etc.); Ex parte Duncan, 796 S.W.2d 562, 564 (Tex. App.—Houston [1st Dist.] 1990, orig. proceeding) (same). Clark’s contempt order is similar to these because it places him on community supervision and imposes numerous terms and conditions similar to those in the cases cited.
The Tyler Court has concluded that a contemnor’s liberty was not sufficiently restrained by a community supervision order which merely required him to pay child support and attorney’s fee arrearages and otherwise comply with the court’s orders. See Ex parte Hughey, 932 S.W.2d 308, 310-11 (Tex. App.—Tyler 1996, orig. proceeding). Other courts have agreed. See In re Zenergy, Inc., 968 S.W.2d 1, 12 (Tex. App.—Corpus Christi 1997, orig. proceeding) (suspended contempt order can be reviewed by habeas “when and if Judge Evins enforces the judgment”); Ex parte Sealy, 870 S.W.2d 663, 665-66 (Tex. App.—Houston [1st Dist.] 1994, orig. proceeding) (suspended contempt order which required contemnor only to pay attorney’s fees and costs and otherwise comply with visitation orders did not impose sufficient restraint for habeas relief).
The First Court of Appeals has concluded that contempt orders in this latter category are not reviewable by mandamus or by habeas. See In re Cornyn, 27 S.W.3d 327, 332 (Tex. App.—Houston [1st Dist.] 2000, orig. proceeding); Sealy, 870 S.W.2d at 666. Thus, the First Court believes that in some circumstances litigants have no remedy.
Litigants should not have to navigate this morass to obtain relief. Texas courts have not clearly stated the appropriate standard for determining when habeas relief is appropriate and when mandamus relief is appropriate in such cases. Accordingly, we shall.
We hold that when a contemnor is actually confined or when the contemnor’s commitment has been suspended and the contemnor has been placed on community supervision, habeas is the appropriate remedy. If the commitment has been suspended without supervision or if the contempt order does not involve confinement (e.g., contempt by fine only), mandamus is the appropriate remedy.
Thus, we agree with Troxel’s argument that habeas is the appropriate remedy in this case. However, rather than requiring Clark to replead this case as a petition for writ of habeas corpus, we shall construe his mandamus petition as one seeking habeas relief. See Ex parte Casillas, 25 S.W.3d 296, 297 n.1 (Tex. App.—San Antonio 2000, orig. proceeding); see also Motor Veh. Bd. v. El Paso Indep. Auto Dealers Assn., 1 S.W.3d 108, 111 (Tex. 1999) (“Our policy has been to construe the Rules of Appellate Procedure liberally, so that decisions turn on substance rather than procedural technicality.”).
CLEAR ABUSE OF DISCRETION
A trial court commits a clear abuse of discretion if it issues an order beyond its jurisdiction. In re Sw. Bell Tel. Co., 35 S.W.3d 602, 605 (Tex. 2000) (orig. proceeding). Clark argues that the trial court lacked jurisdiction to issue a contempt order against him in this case because Troxel’s enforcement motion was untimely. The basis of his argument rests on the fact that the court’s October 1998 order, which appointed Daily as B.A.C.’s managing conservator, modified the child support provisions of the divorce decree such that Clark was ordered to pay child support thereafter to Daily rather than Troxel. He contends that under section 157.005 of the Family Code Troxel had only six months after October 1998 to file a motion to enforce the support provisions of the divorce decree by contempt. See Tex. Fam. Code. Ann. § 157.005(a)(2) (Vernon 2002).
Troxel counters that the trial court had jurisdiction to hold Clark in contempt because: (1) Clark’s support obligation is a continuing obligation which ends only when B.A.C. becomes an adult and graduates from high school (and thus the motion to enforce was timely); and (2) Clark’s interpretation of section 157.005 conflicts with other provisions of the Family Code.
Section 157.005 provides in pertinent part:
(a) The court retains jurisdiction to render a contempt order for failure to comply with the child support order if the motion for enforcement is filed not later than the sixth month after the date:
(1) the child becomes an adult; or
(2) on which the child support obligation terminates under the order or by operation of law.
Tex. Fam. Code. Ann. § 157.005(a).
Section 151.001 describes a parent’s duty to support his or her child in pertinent part as follows:
(a)(3) [a parent has] the duty to support the child, including providing the child with clothing, food, shelter, medical and dental care, and education;
. . . .
(b) The duty of a parent to support his or her child exists while the child is an unemancipated minor and continues as long as the child is fully enrolled in an accredited secondary school in a program leading toward a high school diploma until the end of the school year in which the child graduates.
(c) A parent who fails to discharge the duty of support is liable to a person who provides necessaries to those to whom support is owed.
Id. § 151.001(a)(3), (b), (c) (Vernon Supp. 2004). Section 151.001(d) provides that the rights and duties of a parent are subject to any court order affecting them. Id. § 151.001(d) (Vernon Supp. 2004).
Clark argues that the modification order terminated his obligation to pay support to Troxel by operation of law. See id. § 157.005(a)(2). The Fourteenth Court of Appeals seemingly reached the opposite conclusion in a similar case. Ex parte Tanner, 904 S.W.2d 202, 204 (Tex. App.—Houston [14th Dist.] 1995, no writ). That court observed:
Under TEX. FAM. CODE ANN. § 4.02 (Vernon 1993), a parent has an ongoing obligation to support his or her child while the child is a minor. We interpret the child support obligation referred to in Section 14.40(b)(2) to be this ongoing obligation, rather than the more specific obligation to pay a particular amount, such as under the divorce decree here. Thus, we construe Section 14.40(b)(2) to refer to the time at which the ongoing obligation to support a child ceases, as contrasted from merely being modified.
Id. (footnotes added) (citation omitted).
However, the Code Construction Act requires a court to give effect to every term used in a legislative enactment. Tex. Gov’t Code Ann. § 311.021(2) (Vernon 1998). The Supreme Court has recently described a court’s obligation in this regard as follows:
Generally, we will accept the words used according to their ordinary meaning, unless given a specific statutory definition; we will not give them an exaggerated, forced, or constrained meaning. Also, we will presume that the Legislature used every word of a statute for a purpose. Finally, we will try to avoid construing a statutory provision in isolation from the rest of the statute; we should consider the act as a whole, and not just single phrases, clauses, or sentences.
City of Austin v. Sw. Bell Tel. Co., 92 S.W.3d 434, 442 (Tex. 2002) (footnotes omitted).
It appears that the Fourteenth Court in Tanner failed to see any distinction between the terms “duty” and “obligation.” Section 157.005(a) vests a trial court with jurisdiction to hold an obligor in contempt for failure to pay child support if the enforcement motion is filed within six months after the child support “obligation” terminates. Tex. Fam. Code. Ann. § 157.005(a). Conversely, section 151.001(b) defines in general terms the extent of a parent’s “duty” to support his or her child. Id. § 151.001(b). Section 151.001(c) expressly recognizes that a parent’s “duty” to support a child can be modified by court order. Id. § 151.001(c). Because the Legislature used these two terms in the child support statutes, we must presume that it did so for a particular purpose. Sw. Bell Tel., 92 S.W.3d at 442.
Certainly, the terms “duty” and “obligation” can be synonyms in ordinary meaning. The New American Roget’s College Thesaurus 370 (Philip D. Morehead ed., rev. ed., Signet 1985) (listing “duty” as first synonym of “obligation”). In the child support context however, the term “obligation” assumes a more unique meaning. See Tex. Gov’t Code Ann. § 311.011(b) (Vernon 1998) (“Words and phrases that have acquired a technical or particular meaning, whether by legislative definition or otherwise, shall be construed accordingly.”). Title 5 contains numerous provisions which reference a child support “obligation.” Virtually all of these provisions reflect that an “obligation” to pay child support is established by court order.
The following are some examples:
• “‘Child support services’ means . . . court actions to . . . establish, modify, or enforce child support . . . obligations”; Tex. Fam. Code. Ann. § 101.006 (Vernon 2002);
• “‘Title IV-D case’ means an action in which services are provided by the Title IV-D agency . . . relating to the . . . establishment, modification, or enforcement of a child support . . . obligation”; Id. § 101.034 (Vernon 2002);
• child support order shall require each party to inform the other and the court, etc. of changes in address, etc. “as long as any person, as a result of the order, is under an obligation to pay child support”; Id. § 105.006(b) (Vernon Supp. 2004);
• “A child support obligation does not terminate on the death of the obligee but continues as an obligation to the child named in the support order, as required by this section”; Id. § 154.013(a) (Vernon 2002);
• “A support order may be modified only as to obligations accruing after the earlier of: (1) the date of service of citation; or (2) an appearance in the suit to modify”; Id. § 156.401(b) (Vernon Supp. 2004).
These statutes lead us to the conclusion that the “duty” to support a child is a general responsibility imposed by statute while an “obligation” to pay child support is a responsibility imposed by a specific court order.
Applying this interpretation, we must determine if and when Clark’s court-ordered “obligation” to pay child support to Troxel terminated. Two statutes address when a child support obligation terminates. Section 154.006 provides:
§ 154.006. Termination of Duty of Support
(a) Unless otherwise agreed in writing or expressly provided in the order or as provided by Subsection (b), the child support order terminates on the marriage of the child, removal of the child's disabilities for general purposes, or death of the child or a parent ordered to pay child support.
(b) Unless a nonparent or agency has been appointed conservator of the child under Chapter 153, the order for current child support, and any provision relating to conservatorship, possession, or access terminates on the marriage or remarriage of the obligor and obligee to each other.
Act of May 27, 1999, 76th Leg., R.S., ch. 556, § 9, 1999 Tex. Gen. Laws 3058, 3060 (amended 2003) (current version at Tex. Fam. Code. Ann. § 154.006 (Vernon Supp. 2004)).
Section 154.013 provides in pertinent part:
§ 154.013. Continuation of Duty to Pay Support After Death of Obligee
(a) A child support obligation does not terminate on the death of the obligee but continues as an obligation to the child named in the support order, as required by this section.
Tex. Fam. Code Ann. § 154.013(a).
The Beaumont Court of Appeals has held that a court order modifying a prior custody order by designating the obligor parent as the child’s managing conservator “ends the child support obligation from [the obligor parent and former possessory conservator] to [the obligee parent and former managing conservator].” Comeaux v. Comeaux, 767 S.W.2d 500, 502 (Tex. App.—Beaumont 1989, no writ); accord In re Doe, 917 S.W.2d 139, 142 (Tex. App.—Amarillo 1996, writ denied); cf. Tanner, 904 S.W.2d at 204 (modification order increasing amount of child support to be paid did not terminate child support obligation imposed by original divorce decree).
We must decide whether the Comeaux holding should extend to a situation in which the court designates a non-parent as managing conservator of the child. We conclude that it does. An order modifying a prior child custody or support order necessarily supercedes the prior order to the extent a modification is ordered. Thus, an order modifying a prior child support order may or may not “terminate” the obligation imposed by the prior order, depending on the circumstances.
The modification order in Tanner did not “terminate” the obligor’s obligation to pay child support to his former wife on behalf of their child. See 904 S.W.2d at 204. Rather, it increased the amount of his obligation. Id. at 203-04. Conversely in Comeaux, the modification order “terminated” the obligor’s obligation to pay child support to his former wife because the modification order designated the obligor as the managing conservator. See 767 S.W.2d at 502.
Here, the modification order “terminated” Clark’s obligation to pay child support to Troxel and replaced it with an obligation to pay child support to Daily. Id. Under the terms of section 154.006(a), we hold that his obligation to Troxel terminated as “expressly provided in the [modification] order.” See Tex. Fam. Code Ann. § 154.006(a). Thus, Clark’s obligation to pay child support to Troxel terminated on October 28, 1998, when the court signed the modification order.
Section 157.005(a) defines the length of time a court retains jurisdiction to hold an obligor in contempt for failure to pay child support. In re A.D., 73 S.W.3d 244, 248-49 (Tex. 2002). Under subsection (a)(2), a court’s jurisdiction to hold an obligor in contempt expires if an enforcement motion is not filed within six months after the obligation terminates. Tex. Fam. Code Ann. § 157.005(a)(2). Troxel did not file her enforcement motion within that six-month period. Thus, the court did not have jurisdiction to hold Clark in contempt for non-payment of the child support owed to Troxel.
Because the court did not have jurisdiction, Clark has met his burden of showing a clear abuse of discretion. See Sw. Bell Tel., 35 S.W.3d at 605.
We conditionally grant the writ of mandamus and direct Respondent to withdraw the contempt order entered on May 29, 2002 in cause number 28,034 and notify this Court in writing that he has done so. The writ will issue only if Respondent fails to comply within 20 days after the date of this opinion.
BILL VANCE
Justice
Before Chief Justice Gray,
Justice Vance, and
Justice Reyna
(Chief Justice Gray dissenting)
Writ conditionally granted
Opinion delivered and filed July 21, 2004
[OT06]