DENIED and Opinion Filed January 3, 2020




                                              In The
                                Court of Appeals
                         Fifth District of Texas at Dallas
                                      No. 05-19-00687-CV

                     IN RE GAYLE RENE ROGERS GARCIA, Relator

                 Original Proceeding from the 255th Judicial District Court
                                   Dallas County, Texas
                            Trial Court Cause No. DF-14-16977

                             MEMORANDUM OPINION
                  Before Justices Whitehill, Partida-Kipness, and Pedersen, III
                                Opinion by Justice Pedersen, III
         Relator 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.

       During 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 support payments.

       The 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.

       Both 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 application.

       Rogers 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

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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 treatment program.

       After 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.

                                         Applicable Law

       An 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).

       A 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)

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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.

       To 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 defense,

relator must show conclusively she was unable to pay each obligation as it accrued. Ex parte

Ramon, 821 S.W.2d 711, 713 (Tex. App.—San Antonio 1991, orig. proceeding).

                                              Analysis

       The trial court heard Garcia’s opinion that relator could work and Wright’s and Roger’s

opinions that relator was too mentally ill to work. Relator complains that Wright was not allowed

to testify further and give opinion evidence about relator’s conditions based on relator’s medical

records. Nevertheless, the trial court did allow Wright to testify relator has been hospitalized three

times in the past year and was her patient for counseling and in group therapy. It also allowed

Rogers to testify about relator’s alleged mental illnesses.

       In her new affidavit submitted with the petition, Wright contends relator “could not

knowingly or intentionally violate a court order requiring her to pay support, because she was and

is completely unable to engage in gainful employment,” is unable to support or care for herself,

and is unable to manage money. The affidavit does not, however, address the trial court’s primary

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findings that relator failed to show she could not borrow or obtain the necessary funds from a legal

source—her family. TEX. FAM. CODE ANN. §157.008(c)(3-4). Relator’s petition concedes the

family paid the entire arrearage immediately upon relator’s confinement for contempt.

        Relator also complains she was not allowed to cross-examine Garcia about (1) an affidavit

he filed in 2016 during their child custody proceeding in which he alleged she had been

hospitalized for prescription drug abuse and was unable to take care of herself and (2) Garcia’s

extensive criminal history. Garcia’s opinion about whether relator was competent enough to work

and his credibility are collateral issues in this case. The trial court did not find relator could work.

The trial court based its ruling on relator’s failure to show she could not borrow the money or

obtain it from a legal source. Id.; In re Mancha, 440 S.W.3d 158, 167 (Tex. App.—Houston [14th

Dist.] 2013, orig. proceeding) (indigent mother did not satisfy affirmative defense where she failed

to show she could not have paid support during period when she was employed and did not show

she attempted to borrow from a financial institution to pay child support).

                                             Conclusion

        The evidence shows relator failed to meet her burden to show she could not have borrowed

the money she needed or obtained it from a legal source. Thus, she failed to prove the affirmative

defense of inability to pay. See TEX. FAM. CODE ANN. §157.006(b); Roosth, 881 S.W.2d at 301;

Ramon, 821 S.W.2d at 713. We conclude relator has not shown she is entitled to habeas relief.

See Occhipenti, 796 S.W.2d at 808–09.

        We deny relator’s petition for writ of habeas corpus and vacate the temporary relief granted

in our order entered on June 21, 2019.



                                                     /Bill Pedersen, III//
                                                     BILL PEDERSEN. III
                                                     JUSTICE
190687f.p05
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