Court of Appeals of Texas, Fifth District, Dallas
Original Proceeding from the 255th Judicial District Court
Dallas County, Texas Trial Court Cause No. DF-14-16977
Justices Whitehill, Partida-Kipness, and Pedersen, III
PEDERSEN, . III JUSTICE
Gayle Rene Rogers Garcia has filed an application for writ of
habeas corpus challenging the trial court's order holding
her in criminal contempt and confining her for 100 days for
willfully failing to pay child support owed to her
ex-husband, Charles Garcia. After relator was held in
contempt, her family paid her arrearages but the trial court
would not relent on its contempt order. This Court granted
relator emergency relief and she bonded out of jail. The
Court requested a response from the respondent and real party
in interest but none has been filed. After considering the
record and relator's contentions, we deny relief.
the May 3, 2019 contempt hearing, evidence was admitted
showing the trial court ordered relator to pay Garcia $205
per month in child support and $113 per month in medical
reimbursement starting in 2017. Garcia testified relator had
never made any payments under the order. Garcia had not
spoken to relator since 2016 and could not offer an opinion
as to whether she was mentally competent or what her income
might be. He did opine he thought she could pay the child
support because she was capable of working and she had texted
him a photograph of her in a new car. The State admitted into
evidence a pay schedule showing relator owed $7, 905.96 in
overdue child support and $2, 842.59 in overdue medical
defense called licensed professional counselor Karol Wade
Wright and relator's father Ricky Rogers. Wright
testified she had worked with relator in 2016 on a previous
case and had counseled her on life skills. Rogers re-engaged
Wright to work with relator in October 2018 for additional
counseling and to testify in relator's legal cases.
Rogers paid Wright a $5, 000 retainer for her services.
Wright and Rogers testified relator had been hospitalized
three times during the past year for mental disorders. The
trial court would not allow Wright to testify in depth about
relator's mental health issues, but did allow Rogers to
testify relator suffers from Tourette's Syndrome,
manic-depressive and bipolar disorders, schizophrenia, and
PTSD. Wright and Rogers testified relator had a
"psychotic episode" in Wright's office when
they were preparing for the hearing. Rogers testified relator
"left the building screaming and yelling and upset about
things that [Garcia] had done to her." Later that
evening, relator was arrested for driving while intoxicated.
Wright and Rogers agreed relator is a drug addict. When the
trial court queried counsel about whether relator had applied
for disability, counsel admitted relator's disability
claim had been denied, but she had resubmitted an
testified relator's mental condition renders her unable
to hold a regular job. Relator is trained as a cosmetologist
but Rogers does not think she could work in that occupation.
Rogers had tried unsuccessfully to employ her at his
veterinary clinic and he had set up a hairstyling salon on
the premises for relator which failed. Rogers testified he
owns the car in the photograph relator sent to Garcia and
relator drives an older vehicle. Rogers testified he pays all
of relator's bills. He believes relator is disabled and
he supports her as a parental obligation. Rogers testified he
would probably bail relator out of jail on her DWI case after
the hearing, he would pay for her bond in the present
proceeding, and he would pay for her attorney. Rogers would
not agree to pay relator's child support obligation for
his grandson due to "his father's behavior."
Rogers admitted relator does drugs and finds money to pay for
them. Relator met Garcia when they were both in a prison drug
hearing the testimony, the trial court found relator had not
shown her lack of ability to pay support because there was no
testimony that she had attempted unsuccessfully to borrow
money or that she did not know of any source from which the
money could be legally obtained. The trial court held relator
in contempt, ordered her confined for 100 days, and ordered
her to pay the overdue amounts at a rate of $75 per month for
support and $25 per month for the medical support. Her family
paid the arrearages and arranged for her bond after this
Court granted temporary relief.
original application for writ of habeas corpus may be filed
to collaterally attack a contempt judgment. Ex parte
Rohleder, 424 S.W.2d 891, 892 (Tex. 1967) (orig.
proceeding). In evaluating relator's writ application, we
presume the challenged contempt judgment is valid and relator
bears the burden of showing her entitlement to relief.
See Ex parte Occhipenti, 796 S.W.2d 805, 808-09
(Tex. App.-Houston [1st Dist.] 1990, orig. proceeding).
criminal contempt order punishes for a "completed act
which affronted the dignity and authority of the court."
Ex parte Werblud, 536 S.W.2d 542, 545 (Tex. 1976).
The punishment imposed may include a fine and imprisonment
and it cannot be avoided by subsequent voluntary compliance
with the trial court's orders. Ex parte Johns,
807 S.W.2d 768, 771 (Tex. App.-Dallas 1991, orig.
proceeding). To hold someone in criminal contempt, there must
be proof beyond a reasonable doubt that (1) there is a
reasonably specific order; (2) a violation of the order; and
(3) willful intent to violate the order. Ex parte
Chambers, 898 S.W.2d 257, 259 (Tex. 1995) (orig.
proceeding). We may infer noncompliance is willful if relator
fails to comply with an unambiguous order of which she has
notice. Id. at 261. Relator may raise a defense that
noncompliance was involuntary, but she bears the burden to
show her inability to comply. Id.
prove the affirmative defense of inability to pay, relator
must show she: (1) lacked the ability to provide support in
the amount ordered; (2) lacked property that could be sold,
mortgaged, or otherwise pledged to raise the funds needed;
(3) attempted unsuccessfully to borrow the funds needed; and
(4) knew of no source from which the money could have been
borrowed or legally obtained. Tex. Fam. Code Ann.
§157.008(c). Relator bears the burden to prove her
affirmative defense by a preponderance of the evidence.
See Tex. Fam. Code Ann. §157.006(b); Ex
parte Roosth, 881 S.W.2d 300, 301 (Tex. 1994) (orig.
proceeding). To establish her affirmative ...