ESTEVEZ, EX PARTE AMARILLYZ v. the State of Texas

IN THE COURT OF CRIMINAL APPEALS
OF TEXAS

NO. PD-0581-24

EX PARTE AMARILLYZ ESTEVEZ, Appellant

ON APPELLANT=S PETITION FOR DISCRETIONARY REVIEW
FROM THE FIRST COURT OF APPEALS
HARRIS COUNTY

KEEL, J., delivered the opinion of the Court in which RICHARDSON,
NEWELL, WALKER, and MCCLURE, JJ., joined. SCHENCK, P.J., filed a dissenting
opinion. FINLEY, J., filed a dissenting opinion in which PARKER, J., joined.
YEARY, J., dissented.

OPINION

Appellant is charged with driving while intoxicated (“DWI”). She seeks habeas

relief to avoid prosecution for that charge. She says she was previously prosecuted and

punished for contempt for having committed that DWI and is in jeopardy of successive

prosecution and multiple punishments for the same offense. Her successive prosecution

claim is without merit because the contempt order was void for lack of notice and was

withdrawn by the trial court. But her multiple punishments claim is meritorious, so we
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reverse the judgments of the lower courts.

I. Background

In November 2021, Appellant was charged with misdemeanor DWI, and her bond

was conditioned on, among other things, her committing no crime and engaging in no

conduct that would cause her arrest. In 2022 while that first DWI was pending, she was

charged intermittently with one felony and five more misdemeanors, including, finally, a

second DWI. Here is the timeline of her 2022 charges:

May 17: Theft
May 31: Carrying a weapon
June 1: Possession of a controlled substance (felony)
November 16: Criminal mischief
December 5: Possession of a controlled substance and second DWI

On December 9, 2022, the trial court ordered her to show cause “why she should

not be held in contempt and punished for failing to abide by the ORDERS of this Court,

to wit: DEFENDANT COMMITTED A CRIME AND/OR ENGAGED IN CONDUCT

THAT RESULTED IN HIS [sic] ARREST.” The show-cause order did not specify

either the crime or the conduct.

At the show-cause hearing four days later, Appellant objected that the show-cause

order was defective for failing to give her adequate notice. She withdrew her objection

when the judge threatened to leave her in jail for another three days to give her notice.

The State admitted two exhibits into evidence: (1) the order for pretrial supervision and

bond conditions from the initial DWI charge and (2) the charging instrument from the

second DWI. The prosecutor explained that State’s Exhibit 2 was “the complaint for a
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driving while intoxicated that occurred on December 5, 2022, which states that the

defendant Estevez is being charged with driving while intoxicated in the State of Texas,

which is a criminal offense.” The prosecutor argued that Appellant “clearly violated her

bond conditions” that she had signed in December 2021 because “she picked up the new

law violation of the driving while intoxicated which occurred back on – doublechecking

12/05/2022.” The trial judge asked, “[H]ow many cases does she currently have open in

this court?” And the State recited the other charges pending against Appellant:

She has possession of a controlled substance, which was picked up
also on 12/5/22; the DWI, I’ve already mentioned, which has the same
offense date; a criminal mischief, which has an offense date of 11/16/22.

She has a [sic] unlawful carrying of a weapon, which occurred on
5/31/2022, which is a felony case –so that one is not in this court.

She has a theft in the aggregate which occurred on 5/17/2022, and
then the DWI which she was given the original bond conditions from
11/25/21.

The prosecutor said she had nothing further, and the trial court asked the defense

for a response. The defense attorney said that first “there was deficient notice in this

case” and quoted the show cause order: “Defendant committed a crime and/or engaged

in conduct that resulted in his arrest.” He started to cite a case, and the court interrupted

to ask if that was his only legal argument. He replied that the second argument “would

be that we would ask for leniency and specifically ask the Court not to go over the

maximum allowable judgment of Harris County jail of three days pursuant to TCCP 7.18,

your Honor.” After some discussion about the applicability of that statute, the trial court
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said:

So, what we’ll do is we’ll just leave her in custody and give you a notice
that states all of her law violations that she received and go from there. . . I mean,
it’s more time your client sits in jail. That’s longer than what you say the penalty
is. I want to make sure you feel that you have the right notice. So do you want
to go forward on the notice or do you want to withdraw the notice?

Defense counsel said he would withdraw the notice claim and ask “for leniency and not

exceeding the statutory maximum of three days and/or a fine of $100, your Honor.”

After discussion about the court’s authority to probate the three-day sentence, the

difference “between orders and conditions[,]” and a case cited by the defense, the court

announced its decision: it found Appellant guilty of contempt, saying,

So, what I’ll do is I’ll find her guilty of violating the charges the
State has brought forward under the Show Cause, sentence her to three days
and send her to WHO-A as part of her probation.

I’ll probate her 3-day sentence. And we’ll probate it for nine
months, whenever she finishes the program, and I’ll terminate the
probation.

The defense attorney asked if she could simply serve the three days and forgo the

probation, but the court demurred. “Counsel, are you – I mean, she picks up a new case

every other week. Do you want her to like eventually go to prison for life? Or do you

want this – what is your goal?” The defense attorney answered in the negative,

explaining that “she’s already going there pursuant to the felony court.”

The written judgment corresponded to the oral pronouncement: Appellant was

found in contempt for unspecified disobedience of a court order, sentenced to three days

in jail probated for nine months, and committed to a residential treatment facility,
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Women Helping Ourselves—Atascocita (“WHO-A”).

Thirty days later, Appellant filed an application for writ of habeas corpus seeking

dismissal of the second DWI charge on grounds that she was already prosecuted and

punished for it when she was held in contempt. On February 6, 2023, the trial court

dismissed the show cause order and withdrew its contempt judgment, citing lack of

notice.

On March 13, 2023, the trial court held a hearing on Appellant’s application for

writ of habeas corpus. The trial court denied Appellant’s writ application, and she

appealed.

II. Court of Appeals

The court of appeals affirmed the trial court’s judgment. In re Estevez, No. 01-

23-00216-CR, 2024 Tex. App. LEXIS 4374, at *17 (Tex. App. June 25, 2024). It

determined that the contempt judgment was void, and the trial court had the power and

duty to vacate it even though its plenary power had expired. Id. at *16-17. Because the

contempt order was vacated, the court of appeals concluded that it no longer existed and,

without a valid judgment of conviction having been entered for the same offense,

Appellant could not show that she had been placed in jeopardy. Id. at *11-12.

III. Criminal Contempt and Double Jeopardy

Criminal contempt enforced in non-summary fashion “is ‘a crime in the ordinary

sense.’” United States v. Dixon, 509 U.S. 688, 696 (1993) (quoting Bloom v. Illinois,

391 U.S. 194, 201 (1968). Defendants charged with contempt enjoy most of the same
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constitutional protections applicable to other criminal defendants—notice of charges, the

presumption of innocence, burden of proof beyond a reasonable doubt, privilege against

self-incrimination, and a bar against double jeopardy. Id. The right to a jury trial,

however, is inapplicable to “petty” contempt prosecutions. Bloom, 391 U.S. at 210.

The Double Jeopardy Clause says, “[N]or shall any person be subject for the same

offense to be twice put in jeopardy of life or limb.” U.S. Const. amend. V. It prevents

“both successive punishment and successive prosecution” for the same offense. Witte v.

United States, 515 U.S. 389, 395-96 (1995) (citing Dixon, 509 U.S. at 696). Two

offenses are the same unless the provisions defining them each require “proof of a fact

which the other does not.” Blockburger v. United States, 284 U.S. 299, 304 (1932).

The double-jeopardy bar may apply when two offenses cannot pass the same-elements

test. Dixon, 509 U.S. at 696. The same-elements test asks whether each offense

depends on a unique element; in other words, “whether each offense contains an element

not contained in the other; if not, they are the ‘same offense’ and double jeopardy bars

additional punishment and successive prosecution.” Id.

The same-elements test is a method of statutory construction; its purpose is to give

effect to legislative intent. Whalen v. United States, 445 U.S. 684, 691-92 (1980). It

will not foreclose multiple punishments if the statutes are clear that the Legislature

intended to allow multiple punishments for the same offense. Missouri v. Hunter, 459

U.S. 359, 368-69 (1983). Dixon’s two consolidated cases illustrate Blockburger’s same-
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elements test as applied to contempt for violation of bond conditions; Dixon enjoyed

protection from further prosecution, but Foster did not.

Dixon was on bond for murder, and his bond was conditioned on his committing

no crime, but while on bond he was charged with possession of cocaine. Dixon, 509

U.S. at 691. After a show cause order and a hearing in which his cocaine possession was

proven, Dixon was held in contempt and sentenced to 180 days in jail. Id. at 692. The

trial court later granted his motion to dismiss the cocaine indictment as barred by double

jeopardy. Id. The Supreme Court upheld the dismissal because “the ‘crime’ of

violating a condition of release cannot be abstracted from the ‘element’ of the violated

condition.” Id. at 698. He violated an order that “incorporated the entire governing

criminal code[.]” Id. The underlying offense of cocaine possession was “a species of

lesser-included offense.” Id. (quoting Illinois v. Vitale, 447 U.S. 410, 420 (1980)).

“Because Dixon’s drug offense did not include any element not contained in his previous

contempt offense, his subsequent prosecution violates the Double Jeopardy Clause.” Id.

at 700.

By contrast, in the companion case, Foster was under a civil protection order

(“CPO”) that prohibited him from assaulting his wife. Id. at 692. He was held in

contempt for violating the CPO by committing simple assault, but that did not bar his

subsequent prosecution for assault with intent to kill because the contempt judgment and

the assault indictment had unique elements. Id. at 701. Specifically, the contempt

judgment depended on evidence that Foster knew of the CPO and committed simple
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assault, and the assault indictment alleged intent to kill. Id. at 701-02. Because both

prosecutions depended on at least one element that the other did not, they were different

offenses, and prosecuting Foster for both did not offend the bar against double jeopardy.

Id. at 702.

IV. Analysis

The Legislature wrote Code of Criminal Procedure Chapter 17 to deal with bail

bond conditions in ways that are distinct from contempt. See, e.g., Tex. Code Crim.

Proc. art. 17.40(b) (allowing for revocation of bail bond if defendant violated a

condition); art. 17.09 § 3 (allowing judge to reissue bail bond if it is defective or

insufficient). Chapter 17 says nothing about punishment via contempt for bond-

condition violations. In contrast, the Legislature has specified that the violation of a

peace bond may be punished in multiple ways—forfeiture of the bond, fine,

imprisonment for contempt, or all three. Tex. Code Crim. P. art. 7.18. Its failure to

spell out those options under Chapter 17 signifies that such bonds are exclusively

enforced by the remedies provided in that chapter and not by contempt.

A. No Notice, Void Judgment, No Bar to Successive Prosecution

The show cause order here gave Appellant no notice of her offending conduct. It

did not specify the crime she committed or the conduct she engaged in that might have

violated an order.

But the prosecution filled in those gaps when it offered into evidence the second

DWI’s charging instrument: it was prosecuting Appellant for contempt of court for
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having committed a second DWI. The prosecutor said Appellant “clearly violated her

bond conditions” when “she picked up the new law violation of the driving while

intoxicated” on December 5, 2022.

The trial court confirmed as much in two instances. First, it offered to leave

Appellant in jail and “give you a notice that states all of her law violations.” Second, it

said that it was holding her in contempt for “violating the charges the State has brought

forward under the show cause.” These comments mark a distinction between “all of her

law violations” and the only one “brought forward” by the State—the second DWI. So,

while the show cause order failed to specify any conduct that violated a bond condition,

the record shows that Appellant was prosecuted and punished via contempt for the

second DWI.

Still, because the show cause order did not state an offense, it was void for failing

to provide Appellant with sufficient notice. The contempt judgment based on it was

void, and a void judgment does not bar a successive prosecution. Hoang v. State, 872

S.W.2d 694, 698 (Tex. Crim. App. 1993). Therefore, Appellant’s successive

prosecution claim fails. But as discussed below, her multiple-punishments claim has

merit.

B. Multiple Punishments

The Double Jeopardy Clause bars not only the imposition of multiple punishments

for the same offense; it protects against the attempt to do so. Witte, 515 U.S. at 396.

Appellant was punished for the second DWI when the trial court held her in contempt
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and sentenced her to three days in jail for allegedly having committed it. As in the

eponymous Dixon case, Appellant was held in contempt for violating a bond condition

that prohibited committing a crime, and her “‘crime’ of violating a condition of release

cannot be abstracted from the ‘element’ of the violated condition.” See Dixon, 509 U.S.

at 698. The DWI was a lesser-included offense. See id.; see also Aekins v. State, 447

S.W.3d 270, 274 (Tex. Crim. App. 2014) (noting that a multiple-punishment double

jeopardy violation may occur when the same conduct is punished under both a greater

and a lesser-included offense); Littrell v. State, 271 S.W.3d 273, 275-76 (Tex. Crim. App.

2008) (“In the multiple-punishments context, two offenses may be the same if one

offense stands in relation to the other as a lesser-included offense”). Accordingly, any

effort to punish her a second time for the second DWI is prohibited by the constitutional

bar against double jeopardy.

V. Reply to Dissenting Opinions

Presiding judge Schenck’s dissenting opinion argues that Appellant was not

necessarily held in contempt for committing the second DWI, but the record shows

otherwise. His opinion suggests that she could have been held in contempt for having

been arrested, but the State did not rely merely on her arrest when it prosecuted her for

contempt—it relied exclusively on her having been charged with DWI. Perversely, the

dissent would deprive Appellant of protection against multiple punishments because she

was also deprived of adequate notice and sentenced to jail on less than proof beyond a

reasonable doubt, but that would only compound the trial court’s errors.
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Judge Finley’s dissenting opinion rests on two faulty premises. The first is his

assertion that jurisdiction may be waived. But jurisdiction is an absolute requirement

and may not be waived. Marin v. State, 851 S.W.2d 275, 279 (Tex. Crim. App. 1993).

Jurisdiction depends on a valid charging instrument. Garcia v. Dial, 596 S.W.2d 524,

527 (Tex. Crim. App. 1980). It is not conferred merely by the defendant’s appearance in

court. Id. The second faulty premise is the claim that Appellant’s waiver of notice was

freely made. Since it was produced by the trial court’s threat to leave her in jail even

longer if she insisted on notice, it was not a free choice but was a coerced one. Even the

trial court finally recognized what the dissent still does not—that it never had the

authority to jail Appellant on the defective show-cause order.

VI. Conclusion

Appellant was already punished for the December 5, 2022, DWI and is entitled

to relief from further punishment for that offense. We reverse the judgment of the court

of appeals and remand to the trial court for dismissal of the DWI charge in Cause No.

2435337.

Delivered: June 4, 2025

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