Lee v. State

therefore, appeal as the record on insofar

disсloses,7appellant has not been sentenced Eighth death contravention of the

Amendment. Lynaugh, Franklin v. 164,

U.S. 108 S.Ct. 101 L.Ed.2d 155 premises, ap- In the we hold that

pellant standing has no challenge consti-

tutionality supra. of Article

Briggs v. at 923-24 (Tex.Cr.App.1990).

and nn. 7 & 8 Appel- point

lant’s final of error is overruled. of the trial court is af-

firmed.

CAMPBELL, J., concurs the result disposition

reached in the appellant’s

point believing argu- # of error that the prosecutor perfectly prop-

ment of the

er as a deduction reasonable evi-

dence, argument rather than an based

personal opinion.

TEAGUE, BERCHELMANN and

STURNS, JJ., participating. LEE, Jr., Appellant,

Wilbert

v. Texas, Appellee.

The STATE of

No. 191-88. Texas,

Court Criminal

En Banc.

Nov. questions appellate Eighth record not show whether or Sixth Amendment 7. The does having significance beyond mitigating ‍‌​‌‌‌‌​​‌‌‌​‌​‌​​​‌‌​​‌​​​‌‌​‌‌​‌​​​​​​‌‌​​​​‌​‌‍might evidence that scenario. See be raised which, scope special 1990); issues did exist how- Collins, (C.A.5 DeLuna v. 904 F.2d 228 otherwise, ever, reasons, tactical or was not (C.A.5 1990). Lynaugh, Those 890 F.2d 720 Hence, appellant argue does not on offered. appeal, day. questions another are left for resolve, equipped we nor would a reformed to reflect judgment Lee acquittal for the оffense. judgment of — Austin 1987). Petition for granted the State’s We to determine whether Discretionary Review impression appeals first in this case of the conviction was correctly court decided Tex.R. upon invalid court order. based an review, 200(c)(2).1 After further we App.P. below. will reverse 17, 1986, appellant signed an April On protective order in which it was agreed aliа, specified, was not inter yards go two hundred to within Gutierrez, Austin, appel- Ronald his former wife worked or S. locations where 20, 1986, appellant was lant. resided. On charged violating 25.08 arrested and with § Oden, Moses, Atty., Alia Asst. Ken Dist. Penal The information Code.2 Huttash, Austin, County Atty., Robert “go to charged appellant did then and there Austin, Atty., for the State. State’s residence), (former he wife’s when knew сause of Protective Order was violation en Before the Court banc. by Judge # Russell 142073 issued number 1986_” County Court II on OPINION STATE’S PETITION FOR ON dismiss, alleg- a motion to Appellant filed DISCRETIONARY REVIEW ing agreed protective order was invalid DAVIS, Judge. W.C. decrees, orders, ad- because it “nowhere Appellant judges, trial or otherwise directs Defendant was convicted a bench In a plea go complainаnt’s residence.” on his of nolo contendere of the of- not memorandum, succinctly set violating fense of a court order and was trial State a written days to a term of 180 in the out the issue as “whether sentenced Code, agreement by parties county jail. V.T.C.A. Penal suit, appealed He on the the trial court wherein the items basis or begin language of order improperly denied his motion to dismiss the do not decree, by criminal sanc- against filed him. The is enforceable information Court initially the dearth invalid The State noted Appeals agreed the order was tions.” Fami- construing 71.12 of the language com- of case law because it contained no Code,3 argued that civil caselaw obey ly then manding directing appellant or its command to requiring specific order or reversed provisions. The conviction was (2) directly a member argues grounds communicates with 1. The State in three interrelated (1) threatening appellant's family or for review that conviction or household in a manner; based a valid and enforceable harassing order; (2) finding appeals erred in (3) plаce goes to or near the residence did not contain "command" the language; employment a member of the or business of (3) pur- appellant was convicted family described or household penal statute and not to the mandates of a suant protective order. pursuant the order. We to the mandates of grounds together. these shall addrеss provides par- that two or more 3.Section may agree writing, sub- ties to a Code, 25.08, as it existed Penal 2. V.T.C.A. ject approval to do or refrain entered and vio- order was the time the lated, doing of a number enumerated pertinent part: read in section, preceding 71.11. The set out in the if, (a) in viola- commits an offense agree- approve any or аll of court ment, then issued under ... tion of an order 71.11, part of the will in turn become Code, he or Section order. intentionally: knowingly or violence; (1)commits comply disposi- with an is not al to do or not to do some act or acts. Ex Slavin, (Tex.1967). tive of the issue as it relates to criminal 412 S.W.2d 43 enforcement enabling since the statute Appeals’ The effect ‍‌​‌‌‌‌​​‌‌‌​‌​‌​​​‌‌​​‌​​​‌‌​‌‌​‌​​​​​​‌‌​​​​‌​‌‍of the Court of agreement to incorporated into a civil ruling is that a conviction under specific requirement decree contains a allegedly if will not stand the court order “parties perform” shall be ordered to it. violated does not lan contain “command” 14.06(c). See TEX.FAM.GODE ANN. § guage. only a result is valid if the Such hand, on the other contains judging sufficiency same standard оf in language requiring agreed pro- no such an both a civil order and under 25.08 of the tective order be reasserted in “command” employed. Penal Code is to be It is well form. The State pointing concluded out that an settled to sentence individual to logically distinction is based on the fact contempt prior confinement for every protective order issued under “unequivocal the order must be Chapter 71 is to have certain parte be sufficient.” 777 Taylor, Ex warnings printed in type bold-faced or in (Tex.Cr.App.1989); parte S.W.2d 98 Ex capital letters.4 The order the instant Slavin, supra. punish A court cannot case warnings. contained both contempt someone for of an order which did not him to do do command or not to cоmparison objectives A specific parte Gray, some act. 649 Ex underlying punishment each form of dem (Tex.Cr.App.1983). S.W.2d 640 This stan onstrates the distinction which reviewing sufficiency dard for found in pro drawn between the civil and criminal is, interesting civil cases Slavin other ceedings. object of the misbehavior is ly enough, early originat rooted caselaw contempt different for civil than for the ing Duncan, parte from this Court. In Ex penal offense created under 25.08. Civil 661, (App.1901), Tex.Cr. S.W. contempt process by in Texas is the which attorney contempt held in of a court judicial authority a court exerts its to com appointed order him to a committee pel obedience to some purpose examining court. candidate Padron, (Tex. parte Ultimately Ex 565 S.W.2d 921 for admission the bar. find 1978); Werblud, parte ing Ex 536 S.W.2d 542 the order the trial court to be incom (Tex.1976). unenforceable, contempt plete Presiding and thus essence of is the Davidson, Judge writing majority, for the contemner’s conduct obstructs or tends to proper set the litmus test which has been consist jus obstruct the administration of Jacobs, ently appellate all courts in followed tice. Ex 664 S.W.2d 360 reviewing sufficiency this state of an order: (Tex.Cr.App.1984); ‍‌​‌‌‌‌​​‌‌‌​‌​‌​​​‌‌​​‌​​​‌‌​‌‌​‌​​​​​​‌‌​​​​‌​‌‍parte Salfen, and Ex (Tex.Cr.App.1981). 618 S.W.2d 766 One subject to have been jail disobedience, complete who is committed to for civil must have been * * * perfect should be able to find somewhere It is the within itself. spe record the written which must of the order of the court as disobedience whiсh must con- cifically “command” or “order” an individu- rendered and recorded printed warnings 4. The were as follows: A VIOLATION OF THIS ORDER BY COM- BY MISSION OF AN ACT PROHIBITED THE A WHO VIOLATES THIS ORDER PERSON PUN- MAY BE PUNISHED FOR CONTEMPT OF ORDER MAY BE A MISDEMEANOR $500 COURT BY A FINE OF AS MUCH AS OR MUCH AS ISHABLE BY A FINE OF AS $1,000 BY CONFINEMENT IN JAIL FOR AS LONG JAIL FOR OR BY CONFINEMENT IN MONTHS, AS SIX OR BOTH. MONTHS, AS LONG AS SIX OR BOTH. AN THIS ORDER BY COM- A VIOLATION OF FAMILY VIOLENCE ACT THAT RESULTS IN OF FAMILY VIOLENCE MAY BE A MISSION BE AS A SEPARATE MAY PROSECUTED PUNISHABLE BY A CRIMINAL OFFENSE OR FELONY PUNISHABLE MISDEMEANOR $2,000 AS MUCH AS OR BY CON- FINE OF $1,000 THAN OR BY BY A FINE OF MORE FINEMENT IN JAIL FOR AS LONG AS ONE IN JAIL OR PRISION FOR CONFINEMENT YEAR, OR BOTH. MONTHS, OR BOTH. MORE THAN SIX by Acts 70th The statute was amended 1, 1987, Sept. Leg., ch. eff. now specifically provides pertinent part: more proceeding. stitute the basis of this See SENATE JURISPRU- COMM., is laid Stress this from the fact that DENCE HEARING ON S.B. (March 29, 1983). it Leg. Speaking is this order which is first claimed to 68th have disobeyed, first been and whiсh change from the use of indeterminate gave subsequent proceedings. rise to the language Chapter warning an individ- * * * punish Where the court seeks to ual under restraint that a violation of the fine, arrest, imprisonment either offense, “might” constitute an to a for the disobedience of an order or com- warning more determinate that a violation mand, such order or command must punished according to a may be carry uncertainty, no and must range punishment, one commentator susceptible meanings not be of different stated: constructions, but must be in the form change in the lan- This the law clarifies command, and, of a it- when tested guage required self, speak meaning definitely must the important but it has a far more function. purpose ordering. and of the court in finally provides police statutory It the Duncan, Ex at 760. It is S.W. to arrest those who violate authorization origins clear from the of the test that this relegating order rather than applies solely constituting standard to acts contempt proceedings. enforcement to “disobedience order of the court as Reamey, For Legаl Remedial Alternatives rendered and recorded”. Because it is the Texas, Spouse in 20 HOUS.L.REV. Abuse authority disobedience of the inherent of 1279, 1318-19 issue, the court that is at it follows that a in article em- The same author earlier his exercising contempt pow- before its phasized necessity the for criminal sanc- ers, provided must have the seeks spousal tions for acts of abuse as in the punish to definite and notice instant cause: of those may may acts which he Despite shortcomings, their criminal perform without the risk of held weapon remain an sanctions essential contempt. passes Where such an order against They spouse the arsenal abuse. standard, muster under the Duncan the undeniably deter some abuse and contain authority may of the court then rein- severity potential the to deter more. The contempt. forced punishment paramount; is not contempt judgment, Unlike a civil rather, availability the of the substantive 25.08, supra, is directed toward the mis existence, law, knowledge of its and the proscribed conduct rather than the court’s application and act as law’s swift decisive authority to enforce As its own order. powerful the most deterrents. brief, appellant points reply out in his strength remedy the criminal to law represents and distinct availability in abuse is determined its provide offense enacted to an alternative or form, practical substantive the use of enforcing additional method of orders en by pоlice, prosecution the that law tered under 71.11 and 71.12 of the §§ violations, judicial disposition of Legislative purpose un Code. such cases. derlying provide the statute is to law en Id. 1298-99. personnel authority forcement with the to above, From the it is clear that immediately arrest a violator of a authority to is used to enforce court’s protective ordеr rather than de violence proscribing in this case issue a valid pro pend solely civil enforcement particular loca- specified conduct policy public cess of consid obey the order threatens tions. Refusal forming eration the basis of the enactment authority impedes the law- the court’s perpetrator is remove the from the scene judgment of of the court. A allowing ful business custody into rather than disobeying contempt against the individual further individual to remain free to commit and rees- order acts to reinforce awaiting service of citation valid violence while authority to issue awaiting of the court for show cause or while trial tablish particular order. provided com- order аdequate appellant notice to parison, presupposes an individual has been possible charges. criminal There statutorily warned as by Chapter mandated “magic was no need for command lan- 71 that his conduct result the State guage” since it was not the court’s “com- seeking pursue a criminal misdemeanor culpable mand” appellаnt but the conduct conviction. Whereas the notice previously agreed had not to commit which for enforcement of other civil orders is one charge against was the crux of the him. A command, 14.06(c), of actual supra, see § reading applied fair 25.08 as to the purposes notice for responsibili- of criminal case, facts of the instant does not indicate ty given by is statutory means of the warn- prerequisite that a successful citation is a ings listed provid- 71.16 which are prosecution, for a successful and we de- on the face of the cline to so hold. The Court of order. holding erred in the order to be invalid for case, purposes providing

In the instant a basis for criminal prosecution. not held in contempt оf a court To hold otherwise would be we are not today called on to decide Legislature frustrate the intent of the question whether the order was sufficient language shown of the statute to support judgment a of In punish proscribed Chap- misbehavior stead, we must determine whether there ter 25 of the Penal Code. The State’s exists a valid order under which a criminal grounds for review are sustained. prosecution could legitimately be conduct judgment The Appeals of the Court of is By ed. analyzing the order in terms of its reversed, judgment by the trial sufficiency support judgment a of con court is affirmed. tempt, recog failed to nize a different standard is use to deter TEAGUE, J, dissents. mine sufficiency alleged culpable of con duct gauge sufficiency than utilized to of MILLER, J, joins Believing with note: notice court’s intent to enforce its 71.12, Code, Family that Article V.T.C.A. by contempt.5 own order In agreement in order to facilitate the settlement of by appellant part entered into and made a cases, creates a and distinct “or- cause, of the order this he der,” as term is used in V.T.C.A.Penal committing specified refrain from acts and 25.08, contemplated Code from that § informed that failure to do Code, ‍‌​‌‌‌‌​​‌‌‌​‌​‌​​​‌‌​​‌​​​‌‌​‌‌​‌​​​​​​‌‌​​​​‌​‌‍Family join Article I V.T.C.A. so could result in a citation or majority opinion. prosecu- Were this a prosecution for a criminal offense. See tion under Penal Code 25.08 V.T.C.A. § 71.16, supra. That could be § Family a based on V.T.C.A. Code Article punished by either or both methods is Judge much of what CLIN- clearly Chapter envisioned in 71. TEX. says TON in his dissent would have merit. ANN. FAM.CODE 71.19.6 He was not § only given notice of the risk of STURNS, JJ, BERCHELMANN and offense, charged a criminal he entered participating. spelled into the out those prohibited doing. acts he was from Con CLINTON, Judge, dissenting. trary to the dictates of 14.06of the Fami § judgment appeals The of the court of is ly regarding orders, types Code other correct; Failing it should be affirmed. require 25.08 does not a “com § that, party perform per petition discretionary mand” that the or not review specified activity. statutory improvidently form should be dismissed as warnings part protective granted. as Virginia, chapter

5. See Jackson 443 U.S. 99 S.Ct. this of other relief are cumulative provided by and remedies law." L.Ed.2d 560 provides: "Except provided 6. chapter, provid- this the relief and remedies (Tex.App. opinion appeals field, of the court of ad — Dallas one, 1981) peri n.r.e. Within that reasons for its decision: writ refused

vances two motion, hearing, the parties, notice and that an between the od more, “may modify prior to exclude protec a court a order without does not сonstitute prior order or to contemplation item included tive order within V.T.C.A. in Code, 71.11; two, any item that could have been that “the un exclude 71.14. derlying agreed prior cluded in the order.” order must be sufficient support contempt pe sanctions before the statutory reviewed ante provisions nal Penal sanctions Code] [V.T.C.A. protective court to make а authorize the 25.08 are available.” Lee v. enjoining party a to do or to refrain order S.W.2d 81-82 Thus doing — Austin from prescribed 1987). “Agreed If the Protective so-called doing may “prohibit party” a a court law, protective Order” is not a order under In that context an certain of those acts. sup is Austin Court is a command or direction and regardless portable, sufficiency “should be in the form of command.” 51 “agreed protective order.” Requisites. Tex.Jur.3d 657 respect In order is analo- this A for a order is restraining gous injunction to an by filing application for a commenced and it is axiomatic that such writ “must by person entitled under to whom it is command the ... 71.04; requisites 71.02 and §§ from the com- directed to desist and refrain procedures provided, including hearing are enjoined,” of the act mission continuance 71.10(a), findings, before the §§ 71.04— Tex.R.Civ.Pro. 687. “may any protective make order au- by chapter,” apply thorized this and it to a Manifestly “agreed protective the instant (1) party proceeding to the who is found to statutorily pre- not meet the order” does violence; (2) have committed has protective for requisites scribed of a agreed to the order under 71.12 of this “prohibit” does not in terms the court code,” 71.10(b) (c). act; appellee doing any from it does not ” “command to cease and desist prescribes authority act. order,” protective content of “a subsection (b) here, pertinent of which is viz: appears product of The form to be the “(b) protective may In a order the court agreement par the effort to combine an of

prohibit party However, findings ties and of the court. from: * * * * court,” Lindley “an an act of the order is (1.) Flores, * * * * v. ^2) writ; 1984),no —Corpus Christi “[a] 3) going to and near the residence or through its orders and place employment of a member of the otherwise,” City City Hurst v. Col shall family or household. The сourt (Tex.Civ.App. leyville, 501 S.W.2d prohibited describe the loca- 1973), writ refused n.r.e. —Fort Worth the minimum distances there- tions and protective only Not is the form not from, any, party if that the must main- also it is violative 71.111 of this code tain unless Section case, applies, which ‍‌​‌‌‌‌​​‌‌‌​‌​‌​​​‌‌​​‌​​​‌‌​‌‌​‌​​​​​​‌‌​​​​‌​‌‍the court order To-facilitate settlement of a place protect- need not disclose the 71.12(a) provides for a party’s residence.” parties “may agree writing, SUB- the court, 71.13(a) approval to do According such a JECT to the to § doing any act that for the or refrain from order made under 71.11 is effective 71.11.” exceed court could order period specified not to agreement Thus there is first a written year. generally Magill one Shef- throughout oрinion emphasis Code in effect in is mine this 1. All unless otherwise indicated. All references unless otherwise indicated. following discussion are to sections in made presented and then to the court for

consideration.

Thereafter comes action the court: “If part all or agreement is ap- ”

proved by the the section man-

dates, part “the agreement approved

by the court SHALL BE ATTACHED TO THE PROTECTIVE ORDER and become a

part of THE ORDER OF THE COURT.”

Accordingly, 71.12(a), comply with § i.e.,

two produced, instruments must be

written parties and a just court. And any possible

remove misunderstanding, 71.12(b) provides: “The ex-

pires when expires.” the court order

Therefore, one reason for the decision of

the Austin is correct in

law, and on that basis its

affirmed. majority

Because the do not dismiss the

petition as improvidently granted, I re-

spectfully dissent. GREEN, Appellant,

Daena Texas, Appellee. STATE 368-89,

Nos. 369-89. Criminal Texas.

Nov. 2. There is good requiring ceeding, reason for the order is more in the nature of a protective order: because it determines the is- judgment of the court. specially provided pro- sues and terminates this

Case Details

Case Name: Lee v. State

Court Name: Court of Criminal Appeals of Texas

Date Published: Nov 28, 1990

Citation: 799 S.W.2d 750

Docket Number: 191-88

Court Abbreviation: Tex. Crim. App.