
TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN





NO. 03-99-00199-CR





Ex parte Todd Wesley Reese







FROM THE COUNTY COURT AT LAW NO. 6 OF TRAVIS COUNTY

NO. 501,945, HONORABLE JAN BRELAND, JUDGE PRESIDING






 Todd Wesley Reese was convicted of contempt of court for violating a protective
order.  Reese was subsequently indicted on a stalking charge arising, in part, out of the same
incident.  Reese filed a pretrial writ of habeas corpus contending that prosecution of the stalking
charge was barred by double jeopardy.  The trial court denied relief and Reese brings this appeal. 
We will affirm. 

BACKGROUND

	The State of Texas brought a motion for contempt against Reese for violating a
protective order obtained on behalf of Carless Grays, Reese's former fiancee.  The protective
order prohibited Reese from:  (1) committing acts of family violence; (2) directly communicating
in a threatening or harassing manner with Grays or any member of her family; (3) going within
200 yards of Grays or her residence; or (4) engaging in conduct reasonably likely to harass,
annoy, alarm, abuse, torment, or embarrass Grays or any member of her family.  In finding Reese
in contempt, the trial court focused primarily on events that occurred on October 28, 1997. 
Specifically, the trial court found that Reese had violated the protective order by going within 200
yards of Grays's residence on or about October 28, 1997.  Upon this finding the trial court held
Reese in contempt of court, sentenced him to 120 days' confinement in county jail, and ordered
him to pay $600 in legal fees to the Travis County Attorney's office. 
	The Travis County Attorney's office then brought misdemeanor stalking charges
against Reese. See Tex. Penal Code Ann. § 42.072 (West Supp. 2000).  The indictment alleged
four separate events which formed the basis for the stalking charge, one of which occurred during
the October 28th incident.  With respect to that date, the indictment alleged: 

On or about the 28th day of October, A.D. 1997, the Defendant did then and there
shoot a window out of CARLESS GRAYS' residence and the Defendant
reasonably believed that the said CARLESS GRAYS would regard said conduct as
threatening bodily injury or death, and said conduct caused CARLESS GRAYS to
be placed in fear of bodily injury or death, and said conduct would cause a
reasonable person to fear bodily injury or death of himself or herself.


	Thereafter, Reese filed an application for pretrial writ of habeas corpus contending
that the stalking charge as alleged by the State was barred by double jeopardy.  Reese argued that
because the same factual allegation, the October 28th incident, was used to hold him in contempt
of court, prosecution of the stalking charge as alleged by the State was barred by the double
jeopardy provisions of the federal and Texas constitutions and articles 1.04 and 1.10 of the Texas
Code of Criminal Procedure.  See U.S. Const. amend. V; Tex. Const. art. I, § 14; Tex. Code
Crim. Proc. Ann. arts. 1.04, 1.10 (West 1977).  The trial court granted the writ but denied relief. 
Reese brings this appeal.

DISCUSSION

	The Fifth Amendment to the United States Constitution provides:  "[N]or shall any
person be subject for the same offence to be twice put in jeopardy of life or limb."  U.S. Const.
amend. V.  Article I, section 14 of the Texas Constitution states:  "No person, for the same
offense, shall be twice put in jeopardy of life or liberty, nor shall a person be put upon trial for
the same offense, after a verdict of not guilty in a court of competent jurisdiction."  Tex. Const.
art. I, § 14; (1) see also Tex. Code Crim. Proc. Ann. art. 1.10.  These protections apply to:  (1) a
second prosecution for the same offense after acquittal; (2) a second prosecution for the same
offense after conviction; and (3) multiple punishments for the same offense.  See United States
v. Halper, 490 U.S. 435, 440 (1989), rev'd on other grounds by Hudson v. United States, 118
S. Ct. 488, 490-91 (1997).  The present case implicates the second protection, i.e., a second
prosecution for the same offense after conviction. 
	It has been established that in some cases double jeopardy precludes subsequent
criminal prosecution of offenses that form the basis of a criminal contempt proceeding.  See
United States v. Dixon, 509 U.S. 688, 700 (1993); Ex parte Rhodes, 974 S.W.2d 735, 739, 742
(Tex. Crim. App. 1998); Ex parte Busby, 921 S.W.2d 389, 391 (Tex. App.--Austin 1996, pet.
ref'd).  Because these cases involved criminal contempt proceedings, we must first decide whether
the contempt order against Reese was civil or criminal to determine whether these cases apply.
	Civil and criminal contempt are distinguished by the type of punishment meted out
by the trial court.  See Busby, 921 S.W.2d at 391.  Courts use civil contempt to persuade the
parties before them to obey an order of the court.  See id.; Ex parte Johns, 807 S.W.2d 768, 770
(Tex. App.--Dallas 1991, no writ).  This is accomplished by conditioning punishment upon failure
to obey an existing court order.  See Busby, 921 S.W.2d at 391.  Therefore, in a civil context,
a party before the court may avoid or reduce punishment by obeying a court order.  In contrast,
criminal contempt responds to a completed act that has affronted the dignity of the court.  See id. 
The resultant sentence handed down by the court is obligatory and punitive in nature.  See id.; Ex
parte Johns, 807 S.W.2d at 771.
	In the instant case, Reese was fined $600 in attorney's fees and sentenced to 120
days in county jail for violating the court's protective order.  Because the contempt order was
obligatory rather than conditional and did not permit Reese to avoid the fine or jail time, the
contempt was criminal in nature.  See Busby, 921 S.W.2d at 391.  Therefore, because Reese was
sentenced pursuant to a criminal contempt order, we will proceed with the analysis of Reese's
double jeopardy claim.
	To determine whether a criminal contempt conviction bars further prosecution for
the same offense, the United States Supreme Court uses the "same-elements" test from
Blockburger v. United States, 284 U.S. 299 (1932).  See Dixon, 509 U.S. at 696-97, 704.  The
Blockburger same-elements test evaluates whether each offense contains an element not present
in the other.  See id.; Blockburger, 284 U.S. at 304.  If they do, they are not considered the
"same offense" for double jeopardy purposes, and a successive prosecution is not barred.  See
Dixon, 509 U.S. at 696.
	While a majority of the United States Supreme Court has agreed on the applicable
test to evaluate a double jeopardy claim under these circumstances, a majority has not agreed on
what constitutes an "element" in the "same-elements" test.  See id. at 697-703 (plurality opinion).
 Federal courts generally focus on the elements found in the penal statute.  See, e.g., United States
v. Landerman, 109 F.3d 1053, 1068 (5th Cir. 1997); United States v. Forman, 990 F. Supp. 875,
885 (E.D. Mich. 1997).  However, Texas courts have traditionally focused on the elements as
alleged in the charging instrument.  See Parrish v. State, 869 S.W.2d 352, 354 (Tex. Crim. App.
1994); Busby, 921 S.W.2d at 392.  In Parrish, the Texas Court of Criminal Appeals reevaluated
what is meant by "same elements" after the Dixon opinion:   

We likewise think it reasonably clear from the various opinions in Dixon that the
essential elements relevant to a jeopardy inquiry are those of the charging
instrument, not of the penal statute itself. Statutory elements will, of course,
always make up a part of the accusatory pleading, but additional non-statutory
allegations are necessary in every case to specify the unique offense with which the
defendant is charged.  


Parrish, 869 S.W.2d at 354.  In light of the court of criminal appeals' holding in Parrish and our
decision in Busby, we will focus on the elements in the charging instrument in applying the
Blockburger analysis.  
	Reese argues that because the stalking charge is based in part on conduct for which
he has already been tried and punished in the context of a criminal contempt order, the second
prosecution is barred by double jeopardy.  We disagree.
	With respect to Reese's conduct on October 28, 1997, the indictment charges that
Reese:

did then and there shoot a window out of CARLESS GRAYS' residence and the
Defendant reasonably believed that the said CARLESS GRAYS would regard said
conduct as threatening bodily injury or death, and said conduct caused CARLESS
GRAYS to be placed in fear of bodily injury or death, and said conduct would
cause a reasonable person to fear bodily injury or death of himself or herself.  


(Emphasis added.)  The indictment incorporates much of the language found in the stalking law,
as the court in Parrish anticipated it would.  See Parrish, 869 S.W.2d at 354; see also Tex. Penal
Code Ann. § 42.072.
	The contempt order found that on or about October 28, 1997, Reese went within
200 yards of Grays by going to Grays's residence.  Although the incident alleged in the contempt
order and the allegation in the stalking indictment both occurred on October 28, 1997, the offenses
are not the same under the Blockburger test.  Reese was convicted of contempt of court because
he violated the minimum distance provision in the protective order.  However, failure to stay a
specified distance away from Grays's residence is not an element of the stalking indictment. 
Thus, the contempt order contains an element not present in the stalking indictment.

	Likewise, the stalking indictment contains many elements not present in the
contempt order.  First, the stalking indictment alleges that on October 28, 1997, Reese shot a
window out of Grays's residence.  The contempt order does not include this conduct.  Therefore,
the stalking indictment contains a factual allegation that the contempt order does not and seeks to
punish conduct different from that punished by the contempt order.  Second, the stalking
indictment alleges that Reese engaged in conduct that he knew or reasonably believed Grays would
regard as threatening bodily injury or death.  The contempt order only addresses outward conduct. 
It does not contemplate Reese's mental state with respect to the effect of his conduct on Grays. 
Thus, the stalking indictment contains a mental element that the contempt order does not.  Third,
the stalking indictment charges that Reese's conduct caused Grays to be placed in fear of bodily
injury or death.  Again, the contempt order finds only that Reese went within 200 yards of Grays
in violation of the protective order.  It does not address the effect of that conduct on Grays. 
Consequently, the stalking indictment also contains a causation element not present in the
contempt charge.  Because both the stalking indictment and the contempt order contain at least one
element not present in the other, double jeopardy does not bar the prosecution for stalking.  See
Busby, 921 S.W.2d at 392.

CONCLUSION

	We find that Reese's conduct punished under the contempt order and his conduct
alleged in the stalking indictment do not constitute the same offense under the Blockburger test. 
Thus, we hold that Reese's conviction for contempt does not bar subsequent prosecution of the
stalking charge on double jeopardy grounds.  Appellant's issue is overruled, and we affirm the
trial court's order denying relief.


  
						Mack Kidd, Justice
Before Justices Jones, Kidd and Patterson
Affirmed
Filed:   February 25, 2000
Publish
1.        Conceptually, the Texas and federal versions of the double jeopardy clause are identical. 
See Phillips v. State, 787 S.W.2d 391, 393 n.2 (Tex. Crim. App. 1990); Ex parte Tomlinson, 886
S.W.2d 544, 546 (Tex. App.--Austin 1994, no pet.).  The Texas double jeopardy clause does not
afford greater protection than the federal clause.  See Washington v. State, 946 S.W.2d 912, 913-14 (Tex. App.--Austin 1997, pet. ref'd).  Therefore, we address appellant's contentions by relying
on authority interpreting both state and federal constitutional provisions. 

ng bodily injury or death, and said conduct caused CARLESS
GRAYS to be placed in fear of bodily injury or death, and said conduct would
cause a reasonable person to fear bodily injury or death of himself or herself.  


(Emphasis added.)  The indictment incorporates much of the language found in the stalking law,
as the court in Parrish anticipated it would.  See Parrish, 869 S.W.2d at 354; see also Tex. Penal
Code Ann. § 42.072.
	The contempt order found that on or about October 28, 1997, Reese went within
200 yards of Grays by going to Grays's residence.  Although the incident alleged in the contempt
order and the allegation in the stalking indictment both occurred on October 28, 1997, the offenses
are not the same under the Blockburger test.  Reese was convicted of contempt of court because
he violated the minimum distance provision in the protective order.  However, failure to stay a
specified distance away from Grays's residence is not an element of the stalking indictment. 
Thus, the contempt order contains an element not present in the stalking indictment.

	Likewise, the stalking indictment contains many elements not present in the
contempt order.  First, the stalking indictment alleges that on October 28, 1997, Reese shot a
window out of Grays's residence.  The contempt order does not include this conduct.  Therefore,
the stalking indictment contains a factual allegation that the contempt order does not and seeks to
punish conduct different from that punished by the contempt order.  Second, the stalking
indictment alleges that Reese engaged in conduct that he knew or reasonably believed Grays would
regard as threatening bodily injury or death.  The contempt order only addresses outward conduct. 
It does not contemplate Reese's mental state with respect to the effect of his conduct on Grays. 
Thus, the stalking indictment contains a mental element that the contempt order does not.  Third,
the stalking indictment charges that Reese's conduct caused Grays to be placed in fear of bodily
injury or death.  Again, the contempt order finds only that Reese went within 200 yards of Grays
in violation of the protective order.  It does not address the effect of that conduct on Grays. 
Consequen