      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                       NO. 03-00-00790-CR




                                  Ex parte Teresa Karen Voges




    FROM THE DISTRICT COURT OF COMAL COUNTY, 207TH JUDICIAL DISTRICT
      NO. C-2000-939B, HONORABLE WILLIAM E. BENDER, JUDGE PRESIDING




               Teresa Karen Voges applied for a writ of habeas corpus seeking relief from a judgment

of contempt rendered by the Comal County Court at Law. The writ issued, but relief was denied

following a hearing. We will affirm the district court’s order.

               Voges was tried for driving while intoxicated in the Comal County Court at Law. On

the day Voges’s trial began, the State filed a motion in limine asking that the parties, witnesses, and

attorneys be instructed not to refer to or elicit testimony regarding any body cavity search, strip

search, or any other type of search of Voges without first obtaining a ruling outside the jury’s

presence on the admissibility of the testimony. The motion was granted.

               Voges testified on her own behalf at the trial, and a record of her testimony was

introduced as an exhibit at the writ hearing. During a rambling answer to a question regarding the

arresting officer’s conduct at the police station, Voges stated that she “was strip searched and asked

to remove my tampon with my bare hand.” The prosecutor objected at Voges’s mention of a strip

search, but Voges continued to testify even as the prosecutor was voicing his objection. The court
subsequently declared a mistrial on the State’s motion, dismissed the jury, and held Voges in

contempt.1 The written judgment of contempt states:


        [D]uring her testimony the Defendant intentionally violated the Court’s order by
        presenting testimony to the jury that she had been strip searched by the jailers and
        forced to remove her tampon with her bare hand, or words to that effect. Her
        testimony was not in response to the question of her attorney and she continued to
        proffer the testimony despite an objection lodged by the State’s attorney. The
        testimony was in direct violation of the Court’s Order in Limine and her attorney
        stated on the record that he had informed her not to testify to such matters without
        permission of the Court.


               Voges contends the contempt order violated her due process rights because there is

no evidence that she intentionally violated the court’s order in limine. This habeas corpus proceeding

is a collateral attack on the contempt judgment. Ex parte Rohleder, 424 S.W.2d 891, 892 (Tex.

1967). The burden was on Voges to establish that the contempt order was void, and not merely

voidable. In re Scariati, 988 S.W.2d 270, 272 (Tex. App.—Amarillo, orig. proceeding). The habeas

corpus court may not weigh the evidence to determine whether it preponderates against the judgment,

but may treat the contempt order as void only if the evidence conclusively establishes that fact. Ex

parte Linder, 783 S.W.2d 754, 760 (Tex. App.—Dallas 1990, orig. proceeding).

                The parties agree that the dispositive issue is whether Voges had been told before she

testified that the court had ordered her not to mention the strip search. Absent such knowledge, there

would be no support for the finding that she “intentionally violated” the order in limine.




   1
       Voges was acquitted of the driving while intoxicated charge at a second trial.

                                                  2
               The Honorable Brenda Freeman, Judge of the Comal County Court at Law, testified

at the writ hearing. She acknowledged during questioning by Voges’s attorney that she did not

personally advise Voges of the order in limine or instruct her not to mention the strip search.

Following up on this, counsel for the State asked Judge Freeman, “But you did inform Mr. Greene

[Voges’s trial attorney] and asked [sic] him whether or not he notified his client?” The judge

answered, “Absolutely.” “And,” asked the prosecutor, “did he have any hesitation when he told you

that he told her not to violate the order?” “Not at all,” answered Judge Freeman.

               Voges testified that she was not present when the motion in limine was presented to

the court for a ruling. She said that Greene told her before she testified that the strip search “was

irrelevant to the case” and not to mention it. She acknowledged violating counsel’s instructions, but

testified that Greene never told her that she was under a court order not to mention the strip search.

Voges stated that she would not have violated the court’s order had she known of it.

               A reading of the trial record reflects that after Voges made the allegedly contemptuous

remarks, Judge Freeman asked counsel, “Mr. Greene, did you instruct your client not to refer to that

strip search?” Counsel replied, “Yes, I did, Judge.” Counsel was not expressly asked and did not

state that he had informed Voges of the court’s order. Given the context of the court’s question and

counsel’s answer, however, it was a reasonable inference that he had done so. Greene did not testify

at the writ hearing. As an officer of the court, he could have provided probative evidence as to

precisely what Voges had been told by him regarding the order in limine.




                                                  3
               On this record, we cannot state that Voges carried her burden of establishing that the

contempt judgment is without evidentiary support and void. The district court’s order denying relief

is affirmed.




                                              __________________________________________

                                              David Puryear, Justice

Before Justices Kidd, B. A. Smith and Puryear

Affirmed

Filed: June 14, 2001

Do Not Publish




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