in the Matter of David Christopher Hesse

Opinion issued August 11, 2016

In The

Court of Appeals
For The

First District of Texas
————————————
NO. 01-15-00401-CR
———————————
IN THE MATTER OF DAVID CHRISTOPHER HESSE

On Appeal from the 240th District Court
Fort Bend County, Texas
Trial Court Case No. 12-DCR-061186

MEMORANDUM OPINION

Appellant, David Christopher Hesse, is an attorney who has been held in direct

contempt and fined $500 by the trial court. After being held in contempt, Hesse

requested a de novo hearing under Subsection 21.002(d) of the Government Code.

See TEX. GOV’T CODE ANN. § 21.002(d) (West 2004). Before that hearing, Hesse

filed an application for writ of habeas corpus, which the trial court denied. Hesse
appeals the trial court’s denial of his pre-trial request for a writ of habeas corpus,

contending that: (1) the trial court violated his constitutional rights to due process,

due course of law, and equal protection; and (2) double jeopardy bars his judgment

of contempt. We affirm.

BACKGROUND

Hesse was appointed to represent the defendant in State v. Brandon Jay

Carter, Cause No. 12-DCR-061186, in the 240th Judicial District Court of Harris

County. The defendant pleaded not guilty to the offense of burglary of a habitation

with the intent to commit sexual assault. The trial resulted in a hung jury, causing

the trial court to declare a mistrial on February 26, 2015. On February 25, 2015, the

trial court (the Honorable Lee Duggan, Jr., sitting by assignment) signed, but did not

file, a judgment of contempt and commitment order (1) finding Hesse guilty of direct

contempt, (2) assessing a $500 fine as punishment, and (3) ordering Hesse taken into

custody at the conclusion of the trial, but authorizing Hesse to be released on

personal recognizance as an officer of the court if he sought to appeal the contempt

finding. The copy of the judgment included in the Second Supplemental Clerk’s

Record contains an undated handwritten note stating “ABANDON IN FAVOR OF

2/26/15 JUDGMENT,” signed “Lee Duggan, Jr. JUDGE.”

On February 26, 2015, after the jury had been discharged, Judge Duggan

signed and filed an identical judgment of contempt and commitment order assessing

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a $500 fine and ordering Hesse taken into custody. As with the initial judgment, the

February 26, 2016 judgment asserted that Hesse (1) argued with the court’s rulings,

(2) interrupted the court as it spoke, (3) pursued questioning on certain matters after

being instructed not to do so, and (4) was warned that he would be held in contempt

if his conduct persisted.

Hesse requested a de novo hearing before a different court and asked to be

released on his personal recognizance. The trial court authorized Hesse to make a

personal appearance bond as an officer of the court and directed that he be escorted

to the Fort Bend County Jail to process his personal recognizance bond. Hesse was

then released on his personal recognizance.

On March 9, 2015, a Notice of Allegations of Contempt and Order Setting

Show Cause Hearing for March 23, 2015 was filed and served on Hesse. The

Honorable Michael T. Seiler, presiding judge of the 435th District Court, was

assigned to hear the evidence on Hesse’s guilt or innocence of contempt, and if

guilty, to assess punishment. The notice contains allegations that Hesse (1) argued

with the court’s rulings, (2) interrupted the court as it spoke, (3) pursued questioning

on certain matters after being instructed not to do so, and (4) was warned that he

would be held in contempt if his conduct persisted. The notice further alleges that,

despite the court’s warnings, Hesse disrupted proceedings during his cross-

examination of one of the State’s witnesses by (1) arguing with the court’s rulings,

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(2) on multiple occasions, continuing with questioning even after the court sustained

the State’s objections and instructed counsel to move on to new material, and (3)

interrupting the court as it spoke. The notice states that after the motion for mistrial

was granted and the jury was discharged, “the Court entered a Judgment of Contempt

and Commitment Order after finding [counsel] in contempt and authorized [counsel]

to make a personal appearance bond as an officer of the Court.”

Before the de novo hearing began, Hesse filed an “Application for Writ of

Habeas Corpus and Motion to Quash Notice of Allegations of Contempt.” In it,

Hesse asserted that he was punished for the purpose of the prohibition against

Double Jeopardy because he was deprived of his liberty when he was “taken into

custody” on February 26, 2015 and because the trial court entered two identical

contempt orders against him. Hesse requested that the trial court “declare the

judgments of contempt void; quash the Notice of Allegations of Contempt; sustain

Applicant’s Double Jeopardy challenge and dismiss the instant proceeding,” and

“for general relief.”

In its response to Hesse’s habeas application, the State argued that (1) Hesse

was lawfully held by a personal recognizance bond pending his hearing; (2) the

statutory remedy for vacating a judgment of contempt is a de novo hearing; (3) only

one judgment was contemplated by the trial court; (4) the court followed the

procedures in Ex parte Howell, 488 S.W.2d 123, 126 (Tex. Crim. App. 1972), that

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were adopted by the Legislature in enacting Subsection 21.002(d) of the Government

Code; and (5) Hesse was not “in custody,” but rather was detained and released after

completing procedures for recording a personal recognizance bond.

Hesse’s application for writ of habeas corpus was heard on April 15, 2015.

The trial court denied the application.

STANDARD OF REVIEW

An original habeas corpus proceeding is a collateral attack on a contempt

judgment. See Ex parte Rohleder, 424 S.W.2d 891, 892 (Tex. 1967); In re

Markowitz, 25 S.W.3d 1, 2 (Tex. App.—Houston [14th Dist.] 1998, orig.

proceeding). The purpose of a habeas corpus proceeding is not to determine the guilt

or innocence of the relator, but only to determine whether the relator has been

restrained unlawfully. Ex parte Gordon, 584 S.W.2d 686, 688 (Tex. 1979) (orig.

proceeding). A writ of habeas corpus will issue if the trial court’s contempt order is

void, either because the order is beyond the trial court’s power or because the relator

has not been afforded due process. In re Henry, 154 S.W.3d 594, 596 (Tex. 2005).

We presume that the contempt order is valid. In re Turner, 177 S.W.3d 284,

288 (Tex. App.—Houston [1st Dist.] 2005, orig. proceeding). In a habeas corpus

proceeding challenging confinement for contempt, the relator bears the burden of

rebutting that presumption and demonstrating entitlement to relief. See In re

Coppock, 277 S.W.3d 417, 418 (Tex. 2009).

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 We review a trial court’s ruling on a pretrial writ of habeas corpus for an abuse

of discretion. See Kniatt v. State, 206 S.W.3d 657, 664 (Tex. Crim. App. 2006);

Washington v. State, 326 S.W.3d 701, 704 (Tex. App.—Houston [1st Dist.] 2010,

no pet.). In conducting this review, we view the facts in the light most favorable to

the trial court’s ruling. See Kniatt, 206 S.W.3d at 664; Washington, 326 S.W.3d at

704.

ANALYSIS

Hesse contends that the trial court erred by violating his statutory, equal

protection, due process, and due course of law rights by signing two separate but

identical judgments of contempt (one during trial and one immediately after), each

assessing a $500 fine and ordering him taken into custody. Hesse further contends

that double jeopardy bars prosecution of his contempt because the trial court entered

“two separate but identical judgments of contempt, each assessing a $500 fine and

ordering the attorney taken into custody” before being released upon his personal

recognizance.

Because Hesse’s claims rest in part on his assertion that he was subjected to

two identical contempt judgments, we first address the merit of this underlying

assumption.

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I. Effect of Vacated Judgment

Hesse’s due process, due course of law, and double jeopardy claims presume

that the trial court entered two separate but identical judgments of contempt against

Hesse, both punishing Hesse for the same acts of contempt. Hesse observes that

(1) on February 25, 2015, Judge Duggan signed a judgment of contempt and

commitment order, assessing a $500 fine and ordering Hesse taken into custody and

(2) on February 26, 2015, Judge Duggan signed and filed an identical judgment of

contempt and commitment order, again assessing a $500 fine and ordering Hesse

taken into custody. Hesse asserts that “The trial court violated Hesse’s statutory, Due

Process, and Due Course of Law rights when the trial court did not follow the

procedure mandated by Ex parte Pink and signed two identical judgments of

contempt against Hesse—one during the trial and one immediately after.” (citing Ex

parte Pink, 645 S.W.2d 262, 263 (Tex. Crim. App. 1982)).

Hesse’s assertion that he was subjected to punishment twice under two

identical judgments is without merit. The record demonstrates that Hesse has been

subjected to only one judgment. The February 25, 2015 judgment was never filed

and was vacated in favor of the subsequent judgment signed on February 26, 2015

after the conclusion of the trial. Although Hesse assails the initial judgment of

contempt as being contrary to Pink because it was rendered before the conclusion of

the trial, the trial court remedied the error by vacating its initial judgment in favor of

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a judgment entered after it declared a mistrial. The February 26, 2015 judgment is

consistent with the reporter’s record of the trial court’s ruling; nor does the clerk’s

record anywhere indicate that Hesse was subjected to two identical judgments. Only

one judgment—the February 26, 2015 judgment—is attached to Hesse’s personal

recognizance bond. Accordingly, Hesse’s equal protection, due process, due course

of law, and double jeopardy claims are without merit to the extent they are based

upon an assumption that he was subjected to two contempt judgments for the same

conduct.

II. Equal Protection, Due Process, and Due Course of Law Claims

A. Applicable Law

Hesse’s habeas application was filed before the trial court conducted the de

novo hearing that Hesse requested. Thus, his application sought a pretrial writ of

habeas corpus. “[A] pretrial habeas, followed by an interlocutory appeal, is an

‘extraordinary remedy,’ and ‘appellate courts have been careful to ensure that a

pretrial writ is not misused to secure pretrial appellate review of matters that in actual

fact should not be put before appellate courts at the pretrial stage.’” Ex parte

Ellis, 309 S.W.3d 71, 79 (Tex. Crim. App. 2010) (quoting Ex parte Doster, 303

S.W.3d 720, 724 (Tex. Crim. App. 2010)). Appellate courts must be careful, on

interlocutory review, not to entertain an application for writ of habeas corpus when

there is an adequate remedy by direct, post-conviction appeal. See Ex parte

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Weise, 55 S.W.3d 617, 619 (Tex. Crim. App. 2001) (“Neither a trial court nor an

appellate court should entertain an application for writ of habeas corpus when there

is an adequate remedy by appeal.”); see also Ex parte Smith, 178 S.W.3d 797, 801

n.13 (Tex. Crim. App. 2005) (“[A] writ of habeas corpus cannot be used as a

substitute for an appeal or to serve the office of an appeal.”); Smith v. Gohmert, 962

S.W.2d 590, 593 (Tex. Crim. App. 1998) (“[h]abeas corpus is an extraordinary

remedy; and, ordinarily, neither a trial court nor this Court, either in the exercise of

our original or appellate jurisdiction, should entertain an application for writ of

habeas corpus where there is an adequate remedy at law.”) (quoting Ex parte Groves,

571 S.W.2d 888, 890 (Tex. Crim. App. 1978)). Consequently, “whether a claim is

even cognizable on pretrial habeas is a threshold issue that should be addressed

before the merits of the claim may be resolved.” Ex parte Ellis, 309 S.W.3d at 79.

“If a non-cognizable claim is resolved on the merits in a pretrial habeas appeal, then

the pretrial writ has been misused, and the State can appropriately petition [the Court

of Criminal Appeals] to correct such misuse.” Id.

A defendant may only use a pretrial writ of habeas corpus in limited

circumstances. See Smith, 178 S.W.3d at 801. “[A]n applicant may use pretrial writs

to assert his or her constitutional protections with respect to double jeopardy, Ex

parte Robinson, 641 S.W.2d 552, 555 (Tex. Crim. App. [Panel Op.] 1982), and bail,

Ex parte Keller, 595 S.W.2d 531, 532–33 (Tex. Crim. App. [Panel Op.] 1980).” Ex

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parte Weise, 55 S.W.3d at 619 (footnote citations inserted in text). Pretrial writs may

also be used to challenge indictments where “the alleged defect would bring into

question the trial court’s power to proceed.” Ex parte Weise, 55 S.W.3d at 619. Thus,

pretrial writs may be used to assert that (1) the statute under which the applicant is

prosecuted is unconstitutional on its face, id. at 620, and (2) the face of an

information or indictment “shows that the offense charged is barred by limitations

. . . .” Ex parte Tamez, 38 S.W.3d 159, 160 (Tex. Crim. App. 2001). In such cases,

“the applicant is challenging the trial court’s power to proceed.” Ex parte Weiss, 55

S.W.3d at 620.

Conversely, the Court of Criminal Appeals has held that “an applicant may

not use a pretrial writ to assert his or her constitutional rights to a speedy trial,

challenge a denial of a pretrial motion to suppress, or make a collateral estoppel

claim that does not allege a double jeopardy violation.” Id. (internal citations

omitted). These issues are better addressed by a post-conviction appeal. Id. “Pretrial

habeas should be reserved for situations in which the protection of the applicant’s

substantive rights or the conservation of judicial resources would be better served

by interlocutory review.” Id.

Because the trial court immediately ordered a de novo hearing on Hesse’s

contempt of court, we hold that Hesse has failed to demonstrate that his due process,

due course of law, and equal protection claims fall within the limited circumstances

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under which a pretrial writ of habeas corpus is allowed. Furthermore, to the extent

that such claims are reviewable, we find no error in the trial court’s order denying

habeas relief based on equal protection, due process, or due course of law claims.

B. Equal Protection Claims
In this appeal, Hesse asserts that he is entitled to habeas relief because his

right to equal protection under the law was violated. But Hesse did not present or

argue such a violation in his application for writ of habeas corpus. Nor did Hesse

allege an equal protection violation at the hearing on his application. On appeal,

Hesse provides no argument or authority to support his claims of an equal protection

violation other than:

[I]n 1971, the Supreme Court held that it violated a person’s Equal
Protection Rights when he was forced to lay over or work off his Class
C misdemeanor fines when he was unable to pay those fines. Tate v.
Short, 401 U.S. 395 (1971). And the Supreme Court was clear that a
person who is fined may not be imprisoned until he has been afforded
an opportunity to pay the fine and refused to do so. Id. But Hesse was
not afforded the opportunity to pay the fine(s) before he was taken into
custody.
(footnote citations inserted in text). Hesse cites to Tate v. Short generally but does

not explain its relevance to his case. 401 U.S. 395 (1971). In Tate, the Supreme Court

held that imprisoning defendants who are unable to pay fines violates their equal

protection rights because it discriminates on the basis of economic status. See id. at

397–99. Hesse, however, challenges the trial court’s requirement that he file a

personal recognizance bond or pay the fine. He does not assert that the trial court

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discriminated against him based on his economic status. When an appellant’s brief

fails to adequately argue or cite authority in support of an alleged point of error, any

error is waived. See TEX. R. APP. P. 38.1(i); Lucio v. State, 351 S.W.3d 878, 896–97

(Tex. Crim. App. 2011); Busby v. State, 253 S.W.3d 661, 673 (Tex. Crim. App.

2008). Because Hesse did not raise his equal protection challenge in the trial court

and does not provide relevant authority for the claim on appeal, we hold that he has

not preserved it for our review.

C. Due Process and Due Course of Law Claims

Hesse requested a de novo hearing in accordance with subsection 21.002(d)

of the Government Code regarding his being held in contempt. TEX. GOV’T CODE

ANN. § 21.002(d). Because a de novo hearing was ordered at Hesse’s request,

Hesse’s due process and due course of law challenges to the contempt judgment are

not cognizable in this appeal from his application for pretrial writ of habeas corpus.

See Ex parte Murphy, 669 S.W.2d 320, 321 (Tex. Crim. App. 1983) (holding that

subsequent de novo hearing under predecessor to subsection 21.002(d) “provided

adequate constitutional due process safeguards, thereby curing the prior violation.”)

(citing Ex parte Avila, 659 S.W.2d 443 (Tex. Crim. App. 1983)). Hesse’s remedy at

law for review of the judgment of contempt is a de novo determination of his guilt

by a different judge, as provided in subsection 21.002(d) of the Government Code.

See In re Garza, No. 04–04–00140–CV, 2004 WL 839671, at *1 (Tex. App.—San

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Antonio April 21, 2014, orig. proceeding) (mem. op., not designated for publication)

(denying petition for writ of habeas corpus and motion for emergency relief

challenging contempt judgment because subsection 21.002(d) provides adequate

remedy at law).

Hesse also argues that his due process rights were violated because he was

detained instead of being immediately released, as he claims the statute provides for

officers of the court. Section 21.002 of the Government Code provides: “An officer

of a court who is held in contempt by a trial court shall, on proper motion filed in

the offended court, be released on his own personal recognizance pending a

determination of his guilt or innocence.” TEX. GOV’T CODE ANN. § 21.002(d). Hesse

suggests that because the statute does not require any form of bond, “his Bar Card

and his promise to appear when ordered to do so” were sufficient to comply with the

statute.

But Hesse concedes that the trial court ordered that he be released on his

personal recognizance. A personal bond releases a person on his or her own

recognizance, without the requirement of sureties or other security, but solely on his

or her promise to show up at a later court date. See TEX. CODE CRIM. PROC. ANN.

arts. 17.03 & 17.04 (West 2015). Although Hesse contends that the bond required

that he pay the $500 fine because it notes that it is the amount ordered by the trial

court, there is no evidence that Hesse was made to pay any amount in a fee or as bail

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before he was released. Thus, we reject Hesse’s contention that he was required to

pay a fine or provide bail under threat of imprisonment. Accordingly, the trial court

did not abuse its discretion in denying Hesse’s request for pretrial habeas relief on

this basis.

III. Double Jeopardy Claims

In his third and fourth issues, Hesse asserts double jeopardy violations,

arguing that “because he was incarcerated before being released on his personal

recognizance,” he cannot be subjected to de novo trial pursuant to the Section 22 of

the Government Code. But it was Hesse who requested the de novo hearing. The

double jeopardy clause protects a person from governmental oppression, not his own

requests. “[T]o require a criminal defendant to stand trial again after he has

successfully invoked a statutory right of appeal to upset his first conviction is not an

act of governmental oppression of the sort against which the Double Jeopardy Clause

was intended to protect.” United States v. Scott, 437 U.S. 82, 91 (1978). Here, Hesse

requested a de novo hearing in accordance with Subsection 21.002(d) of the

Government Code; he cannot claim on appeal that the hearing that he invoked

violates double jeopardy. See, e.g., Ex parte Murphy, 669 S.W.2d at 322 n.4 (holding

that habeas applicant “should not be heard to complain of a violation of his Fifth

Amendment rights while simultaneously requesting and receiving a second trial

pursuant to [the predecessor to subsection 21.002(d)].”) (emphasis in original).

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 Hesse further contends that he was punished by being held “in custody” during

the time the Sheriff’s office processed his personal bond, but he provides no support

or argument for this contention. At the hearing on his habeas application, Hesse

argued that he was in custody because “Bailiff took him. Walked him out the

backdoor all the way to the jail. He was booked in, fingerprinted, photographed, and

then was allowed to post a $500-personal bond, which shows as a felony contempt.”

But the hearing record instead reflects that Hesse was detained solely for the

administrative purpose of processing his personal bond and was then released

without payment:

MR. HESSE: Attorney Chris Hesse request to be released on personal
recognizance as pursuant to the government code. Attorney Chris Hesse
requests that the question of his contempt be transferred to another
district court to determination [sic] if indeed he is in contempt.
THE COURT: The second District Administrative Judge will take care
of the later matter. You are authorized to be released on your personal
bond as an officer of the Court after you have checked in with the
sheriff. We will stand in recess.
MR. HESSE: I would like to be released on personal recognizances
now and taking me into custody is improper according to the
government code.
THE COURT: Well, I think they need to have some record as to where
you are and where we go from here. I’ll ask you to accompany the
bailiffs over there but the order itself and my instruction to each of you
is to relay personnel there that you are to be released on personal bond.
Because Hesse did not meet his burden of proving that he was incarcerated rather

than released on a personal bond and he was not subjected to two judgments for the

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same conduct, we hold that the trial court was within its discretion to deny Hesse’s

pretrial request for habeas relief based on a double jeopardy challenge.

CONCLUSION

For the foregoing reasons, we affirm the trial court’s denial of Hesse’s

application for writ of habeas corpus.

Jane Bland
Justice

Panel consists of Justices Higley, Bland, and Massengale.

Do not publish. TEX. R. APP. P. 47.2(b).

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