                                       COURT OF APPEALS
                                    EIGHTH DISTRICT OF TEXAS
                                         EL PASO, TEXAS


                                                       §
                                                                         No. 08-14-00004-CR
                                                       §
                                                                            Appeal from the
    EX PARTE: ANTONIO BARRIENTEZ                       §
                                                                          168th District Court
                                                       §
                                                                       of El Paso County, Texas
                                                       §
                                                                (TC# 20120D01144/2013DCV1544)
                                                       §

                                              OPINION

        Antonio Barrientez appeals the trial court’s order denying him habeas corpus relief from

indictment in Cause No. 20120D01144. In his sole issue, he contends that the Double Jeopardy

Clause bars any prosecution for violation of sex offender civil commitment terms because it

would effectively allow the State to punish him twice for the same crime. We affirm.

                                             BACKGROUND

        Following his apparent conviction for an unknown sex offense,1 Appellant entered into

an agreed judgment civilly committing him to certain restrictions as a sexually violent predator

in Montgomery County, Texas. As part of the terms of his civil commitment, Appellant could


1
  Although Appellant claims this conviction bars the instant prosecution under double jeopardy, Appellant never
makes clear what specific sex crime he was found guilty of, nor does any record of that conviction appear in the
appellate record before this Court.
not possess a cellular phone without prior approval from the Office of Violent Sex Offender

Management.

       Subsequently, the State indicted Appellant for violating his civil commitment terms by

possessing an unauthorized cell phone in a correctional facility, enhanced by a previous 2010

conviction for the same offense. Appellant filed for a pretrial writ of habeas corpus, contending

that both the civil commitment and the prosecution for violating the terms of the civil

commitment constituted punishments in violation of his double jeopardy rights. The trial court

denied relief, and he appealed.

                                        DISCUSSION

       Appellant maintains that double jeopardy bars prosecution in this case. We disagree.

                                      Standard of Review

       We review the facts underlying the trial court’s habeas corpus decision “in the light most

favorable to the trial judge’s ruling and should uphold [that ruling] absent an abuse of

discretion.” [Internal quotation marks omitted]. Ex parte Quintana, 346 S.W.3d 681, 684

(Tex.App.--El Paso 2009, pet. ref’d). We review de novo mixed questions of law and fact that

do not hinge on credibility or demeanor determinations. Ex parte Miller, No. 08-11-00245-CR,

2012 WL 5949741, at *2 (Tex.App.--El Paso Nov. 28, 2012, no pet.)(not designated for

publication).

                                            Analysis

       “The Double Jeopardy Clause protects criminal defendants from three things:            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.” Ex parte Milner,

394 S.W.3d 502, 506 (Tex.Crim.App. 2013). The thrust of Appellant’s argument, near as we can



                                               2
construe it, is that the State seeks to punish him for his sex offense for the third time—first,

through his conviction; second, through the civil commitment process; and third, by prosecuting

him for violating the terms of that commitment.

       The State, as a threshold matter, argues that we should not consider any constitutional

challenges to the commitment process on collateral review and that the only issue properly

before the Court is double jeopardy as to the commitment violation charge. We agree. Although

Appellant has cited to cases that discuss civil commitment processes in light of both due process

and double jeopardy, Appellant has not briefed any argument on the as-applied constitutionality

of Texas’ civil commitment regime, and we will not address that issue, nor can we in this

procedural posture. See Ex parte Ellis, 309 S.W.3d 71, 79 (Tex.Crim.App. 2010)(as-applied

constitutional challenges are generally not cognizable as pretrial habeas corpus claims). Instead,

Appellant’s brief presents only a double jeopardy challenge.

       We also note that Appellant cannot use his habeas corpus petition to collaterally attack

the agreed civil commitment order on double jeopardy grounds. See Adams v. State, 222 S.W.3d

37, 56-57 (Tex.App.--Austin 2005, pet. ref’d)(defendant could not collaterally attack civil

commitment order in direct appeal from criminal conviction).           Even if Appellant could

collaterally attack the agreed civil commitment order in this case, it is well-settled that a sex

offender civil commitment proceeding is not “punitive,” see In re Commitment of Fisher, 164

S.W.3d 637, 653 (Tex. 2005); Adams, 222 S.W.3d at 55-56, and that imposition of civil

commitment is not considered to be “punishment” under double jeopardy jurisprudence because

its purpose is ostensibly preventive and not retributive. See In re Commitment of Browning, 113

S.W.3d 851, 862 (Tex.App.--Austin 2003, pet. denied)(defendant not entitled to criminal

constitutional procedures, including protection against double jeopardy, because sex offender



                                                  3
was civil proceeding and not a punitive criminal proceeding).

           Appellant correctly recognizes this fact, but notes that while the Texas Supreme Court

has decided in Fisher that the statute here is not punitive, we would be justified in relying on the

rationale expounded upon in the Corpus Christi Court of Appeals opinion that Fisher reversed2

because the Texas Court of Criminal Appeals has apparently not passed on this issue. Even so,

silence from one high court does not mean we are free to disregard the other high court’s ruling

in Fisher until both courts have ruled on this issue. Intermediate courts are bound by the

decisions of the high courts. In re Judd, 391 S.W.3d 561, 563 n.4 (Tex.App.--Texarkana 2013,

orig. proceeding)(intermediate appellate court may not disregard authority from Texas Supreme

Court under stare decisis); Bryant v. State, No. 14-11-00820-CR, 2012 WL 5378116, at *6

(Tex.App.--Houston [14th Dist.] Nov. 1, 2012, no pet.)(mem. op., not designated for

publication)(intermediate court must adhere to Court of Criminal Appeals decisions out of

“principles of vertical stare decisis”). Here, we have a definitive answer on a legal question

from one of the two high courts. Absent conflicting authority, we cannot disregard the Texas

Supreme Court’s legal determination under stare decisis. Appellant is not entitled to relief on

this ground.

           Finally, we reject Appellant’s contention that punishing him for violating the civil

commitment requirements constitutes a second punishment for the sex offense that led to his

commitment. First, we have no information in the record pertaining to the original sex offense,

and thus cannot determine how the conduct at issue is related to that offense either elementally

under the Blockburger3 test or in terms of evidence. See Ex parte Chairez, No. 08-00-00083-CR,

2001 WL 63033, at *2-*3 (Tex.App.--El Paso Jan. 25, 2001, no pet.)(not designated for

2
    In re Commitment of Fisher, 123 S.W.3d 828 (Tex.App.--Corpus Christi 2003, pet. granted).
3
    Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306 (1932).

                                                           4
publication)(habeas proponent bears burden of proving claim). Simply put, we cannot process

Appellant’s claim without knowing what the original charge was.           Second, to the extent

Appellant argues abstractly that any prosecution for violating civil commitment requirements is a

second punishment for the underlying sex offense per se, we note that our sister courts

addressing this issue have held otherwise. Ex parte Darnell, No. 2-08-229-CR, 2009 WL

976021, at *1 (Tex.App.--Fort Worth Apr. 9, 2009, pet. ref’d)(mem. op., not designated for

publication); cf. Smith v. Doe, 538 U.S. 84, 102, 123 S.Ct. 1140, 1152, 155 L.Ed.2d 164

(2003)(noting, in challenge to Alaska sex offender law, that any prosecution stemming from a

registration violation “is a proceeding separate from the individual’s original offense”). The

offense of possessing a cellular phone while subject to civil commitment requirements is a

separate and distinct offense from the sex offense for which Appellant was convicted. Because

Appellant has not explained how his particular case differs or distinguished applicable law, we

proceed no further in our analysis.

       Issue One is overruled. The judgment of the trial court is affirmed.



June 3, 2015
                                            YVONNE T. RODRIGUEZ, Justice

Before McClure, C.J., Rodriguez, and Hughes, JJ.

(Do Not Publish)




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