                                          In The

                                  Court of Appeals
                      Ninth District of Texas at Beaumont
                                _________________
                                  NO. 09-12-00531-CV
                                _________________

                            IN RE DONALD BEELER SR.

________________________________________________________________________

                           Original Proceeding
________________________________________________________________________

                                        OPINION

       Donald Beeler Sr. petitioned for habeas corpus relief from the trial court’s

judgment of contempt and from the order of commitment. We ordered Beeler’s release on

bond pending the resolution of his petition. Donald Jock Hinrichs, executor of the estate

of William Cruse Fuqua, filed a response as the real party in interest. After reviewing the

petition, the response, and the record submitted by the parties, we conclude Beeler is not

entitled to release. We deny habeas relief and remand Beeler to the custody of the sheriff.

                                      BACKGROUND

       This case concerns the enforcement of a 2003 final judgment in a dispute over

land. The property is described in the trial court’s 2003 judgment. Fuqua sued to recover

the land from Donald Beeler and his wife, Beverly Ann Beeler, who claimed the property


                                             1
through adverse possession. See Beeler v. Fuqua, No. 09-03-344-CV, 2004 WL 1902535,

at *1 (Tex. App.—Beaumont Aug. 26, 2004, pet. denied) (mem. op.). After the trial court

determined Fuqua had record title to a 1/6 undivided interest in the property as a matter

of law, the jury found the Beelers did not own the land through adverse possession. Id. at

1, 4. On June 11, 2003, the trial judge signed a judgment which (1) provided that the

Beelers take nothing from Fuqua, (2) ordered the clerk to deliver to Fuqua certain funds

in the registry of the court, (3) awarded possession of the land to Fuqua “with the right to

remove fences as he sees fit,” and (4) permanently enjoined the Beelers from going on

the land or interfering with its use and possession by Fuqua. The Beelers appealed the

judgment on the jury’s verdict. This Court affirmed the trial court’s judgment. Id. at **1,

5.

       On May 16, 2005, the trial court convened a hearing on Fuqua’s motion to hold

the Beelers in contempt for violating the permanent injunction. After hearing arguments

of counsel, the trial court declined to rule on the motion for contempt, but granted

Fuqua’s motion for release of the funds in the registry of the court. The Beelers appealed

the trial court’s denial of their motion for rehearing of the trial court’s post-mandate order

releasing the funds in the registry of the court. Beeler v. Fuqua, No. 09-07-358-CV, 2007

WL 2962799, at *1 (Tex. App.—Beaumont Oct. 11, 2007, pet. denied) (mem. op.). This

Court held that the order was not appealable and dismissed the appeal. Id. at *2. The trial

court ordered the Beelers to pay $7,500 in attorney’s fees as a result of their unsuccessful


                                              2
appeal. Id. at *1. The Beelers’ appeal of that order was dismissed for want of prosecution.

See Beeler v. Fuqua, No. 09-08-00361-CV, 2008 WL 5501162, at *1 (Tex. App.—

Beaumont Jan. 15, 2009, no pet.) (mem. op.).

        Fuqua filed a post-judgment petition to enforce the judgment, and to hold the

Beelers in contempt for violating the permanent injunction. On April 23, 2009, the trial

court issued a show cause order. The trial court conducted a hearing on July 8, 2009. On

September 8, 2009, the trial court signed a judgment holding the Beelers in constructive

contempt and ordering each of them to serve 180 days in jail unless they purged

themselves of their contempt by removing their cattle and their family’s cattle from the

land within seven days. That order also ruled that the Beelers were collaterally estopped

from claiming a 5/6 interest in the property and awarded attorneys fees to Fuqua, but

denied Fuqua other requested turnover relief. Fuqua and the Beelers appealed, and that

appeal was transferred to the El Paso Court of Appeals on a docket equalization order.

See Beeler v. Fuqua, 351 S.W.3d 428 (Tex. App.—El Paso 2011, pet. denied). The El

Paso Court held it lacked appellate jurisdiction over the contempt finding and dismissed

that part of the appeal, but affirmed the remainder of the post-judgment order. Id. at 433-

34. The Supreme Court denied a petition for review, and the mandate issued July 17,

2012.

        On August 13, 2012, Fuqua moved for issuance of an order of commitment. The

trial court heard the motion on September 26, 2012, at which time counsel for the Beelers


                                            3
stated that illness prevented him from being ready for the hearing. Overruling the request

to delay the hearing, the trial court considered evidence. The trial court delayed ruling on

the merits, reconvened the hearing on October 5, 2012, and took additional testimony, as

an accommodation to the Beelers’ counsel. At the conclusion of the hearing, the trial

court signed a commitment order for Donald Beeler Sr. on the 2009 contempt order. 1

                                   ILLNESS OF COUNSEL

       Beeler argues he was denied effective assistance of counsel. Presented in this way,

Beeler’s underlying argument is that the trial court abused its discretion by failing to

grant a continuance of the September 26, 2012 hearing due to counsel’s illness. One of

the Beelers’ attorneys in the trial court represents Beeler on appeal. A claim of

ineffectiveness at the trial court level may preclude representation in an appellate court

because of a conflict of interest. See, e.g., White v. State, 190 S.W.3d 226, 230 n.2 (Tex.

App.—Houston [1st Dist.] 2006, no pet.) (Trial counsel who conceded her

ineffectiveness in the brief on appeal was replaced by new counsel.); Camacho v. State,

65 S.W.3d 107, 109-10 (Tex. App.—Amarillo 2000, no pet.) (per curiam order) (“If

ineffective assistance of counsel at trial is raised as an issue on appeal by trial counsel

who is also functioning as appellate counsel, a potential or actual conflict between the
       1
        The 2003 judgment also enjoined Beverly Ann Beeler, and the 2009 contempt
judgment found Beverly Ann Beeler in contempt, and ordered Donald R. Beeler, Jr. to
remove all fences he had erected on the property. Only Donald Beeler Sr. has been
confined pursuant to a court order. Because the acts of Donald R. Beeler Jr. and Beverly
Ann Beeler are not at issue in this habeas proceeding, this opinion should not be
construed as support for an argument that the trial court lacks authority to hold them in
contempt.
                                             4
interests of appellant and appellate counsel arises[.]”). Because the argument essentially

is a denial-of-continuance issue, however, replacement of counsel is not required in this

case.

        As Beeler concedes, the trial court’s ruling on the request for a continuance is

reviewed for abuse of discretion. See Villegas v. Carter, 711 S.W.2d 624, 626 (Tex.

1986); Harrison v. Harrison, 367 S.W.3d 822, 826 (Tex. App.—Houston [14th Dist.]

2012, pet. denied). In Villegas and Harrison, the trial court had abused its discretion by

denying a request for a continuance of the trial after allowing counsel to withdraw shortly

before trial. Villegas, 711 S.W.3d at 625-26; Harrison, 367 S.W.3d at 834-35. Here,

counsel did not withdraw as counsel, and he participated in the hearing.

        Beeler cites two cases from other jurisdictions. See Gaspar v. Kassm, 493 F.2d

964 (3rd Cir. 1974); Smith-Weik Mach. Corp. v. Murdock Mach. & Eng’g Co., 423 F.2d

842 (5th Cir. 1970). Gaspar concerned a continuance based on the absence of a party

whose testimony was crucial to his case. See Gaspar, 493 F.2d at 969. In Smith-Weik,

lead counsel was unavailable for the trial; on appeal, the court determined that in

hindsight “the denial of the motion for continuance severely prejudiced the defendant;

that, on balance, the interests in favor of a fair trial heavily outweighed the interests in

favor of an immediate trial.” 423 F.2d at 844. More recently, the Fifth Circuit noted that

Smith-Weik “explores a facet of the abuse of discretion standard rather than articulating a




                                             5
different standard for cases involving an attorney’s illness.” Johnson v. Potter, 364 Fed.

Appx. 159, 162 n.1 (5th Cir. 2010).

       Beeler identifies no specific instance in which counsel performed deficiently

during the September 26, 2012 hearing because of illness. The trial court noted that “it

seems like you are doing pretty good up here[,]” but the court recessed the hearing as an

accommodation to counsel. The trial court reconvened the hearing on a later date.

Counsel returned, aided by co-counsel, and presented evidence and argument. Beeler has

not shown that the trial court abused its discretion in conducting the hearing when and in

the manner that it did.

                                 CONTEMPT JUDGMENT

       A court has inherent power to punish a party who fails to obey a prior order of the

court. Ex parte Barnett, 600 S.W.2d 252, 254 (Tex. 1980). The power is an essential

element of judicial independence and authority. Id. To obtain his release, the relator must

show that the trial court’s order of commitment is void. See In re Henry, 154 S.W.3d 594,

596 (Tex. 2005); Ex parte Chambers, 898 S.W.2d 257, 259 (Tex. 1995).

       Beeler contends the 2009 contempt judgment fails to “conform to the facts in

evidence[,]” and he suggests that the 2003 judgment does not clearly state in what respect

the judgment had been violated. The 2009 contempt judgment holds Beeler in contempt

for violating the 2003 permanent injunction that prohibited Beeler from going on the

property or interfering with the use and possession of the land. The judgment establishing


                                            6
the permanent injunction is final and enforceable by the trial court. See Beeler, 2004 WL

1902535.

       Beeler asserts that the injunction is somehow affected because Fuqua’s undivided

1/6 interest in the property was adjudicated, and Beeler believes the other 5/6 interest

belongs to him. Id. at *1. He fails to distinguish Fuqua’s undivided interest in the

property from the land itself. Fuqua is a record title holder of land with others who were

not joined in the litigation. Id. Both Fuqua’s and Beeler’s rights were fully adjudicated.

“[A] tenant in common is entitled to possession of the entire premises against all persons

except the other tenants in common[.]” Steddum v. Kirby Lumber Co., 221 S.W. 920, 922

(Tex. 1920). “[A] stranger to the title, or trespasser, cannot defeat a recovery by showing

an outstanding title to some interest in the land in one not a party to the suit.” Id. Beeler

did not establish record title to any interest in the property from the sovereignty of the

soil; instead, he claimed the property through adverse possession. Beeler, 2004 WL

1902535, at *4. The jury found against Beeler. He is permanently enjoined in the 2003

final judgment from entering on or using any of the property. See id. at *1.

       Beeler contends he was deprived of a jury trial, but where the sentence for

contempt does not exceed six months, the relator is not entitled to a jury trial. See Ex

parte Werblud, 536 S.W.2d 542, 547 (Tex. 1976). Beeler also complains that Fuqua’s

motion for contempt was unsworn. The lack of a verification or sworn affidavit does not

deprive the trial court of the power to enforce its judgment through the exercise of


                                             7
contempt power by issuing a show cause order. Ex parte Winfree, 263 S.W.2d 154, 156-

58 (Tex. 1953); see also Tex. R. Civ. P. 692. A show cause order issued in this case and

resulted in the trial judge’s signing a judgment of contempt.

                            EVIDENCE SUPPORTING CONTEMPT

       Beeler contends the contempt judgment is void because of the lack of any

evidence to support the trial court’s findings. He argues a criminal contempt judgment

must be supported by some evidence of contempt. Where there is no evidence of

contempt, the order is void. See In re Long, 984 S.W.2d 623, 626 (Tex. 1999).

       “A criminal contempt conviction for disobedience of a court order requires proof

beyond a reasonable doubt of: (1) a reasonably specific order; (2) a violation of the order;

and (3) the willful intent to violate the order.” Chambers, 898 S.W.2d at 259. 2 But an

involuntary inability to comply with the trial court’s order is a defense on which the

relator bears the burden of proof. Id. at 261.

       The purpose of the 2012 hearing was to determine whether Beeler had purged

himself of contempt, as permitted by the 2009 contempt judgment, or whether the

commitment order should issue. The habeas record does not contain the record of the

2009 contempt hearing. Some of the findings issued by the trial court in 2009 include the

following:
       2
         The contempt judgment also contained a provision through which Beeler could
purge himself of his contempt and avoid the sentence. However, Beeler did not purge
himself of his contempt, and he does not claim a continuing right to purge himself of
contempt. He attacks the order as one for criminal contempt. We therefore address the
order as one for punishment.
                                                 8
• In Cause No. 41569 . . . the Beelers claimed by adverse possession that
  they owned [the property]. The jury found against the Beelers so a Final
  Judgment was signed and entered which Final Judgment awarded the
  Beelers nothing and permanently enjoined [the Beelers] from going on
  said land or interfering with the use and possession of the land by
  [Fuqua] who was awarded his 1/6 title to the land and the full use and
  possession of the land. . . .

• Since June 11, 2003 D. R. Beeler has been on and used some or parts of
  [the property] and he with Beverly Ann Beeler have grazed their
  numerous cows . . . on some of the lots[.]

• Donald R. Beeler Jr. has built fences since June 11, 2003 on some of
  [the property] and in building these fences has cut and damaged
  timber[.]

• D. R. Beeler and Beverly Ann Beeler have interfered with the use and
  possession of the land by [Fuqua] and have violated the permanent
  injunction in the Final Judgment . . . . To reasonably enforce the
  injunction . . . it is necessary to Incarcerate D. R. Beeler and Beverly
  Ann Beeler in the Hardin County Jail for 180 days for contempt of
  court. They are given the opportunity to purge Themselves from
  contempt of court by removing all cows from [the property] within 7
  days after September 8, 2009. This is a reasonable and necessary action
  to enforce the Court’s injunctions.

• Donald R. Beeler Jr. . . . testified under oath that he and his family were
  owners of 5/6 of [the property] . . . . Donald R. Beeler Jr. testified that
  he and a friend built fences on some of [the property] to form pens to
  graze the cows owned by D. R. Beeler, Beverly Ann Beeler, and various
  members of their family, . . . . He also testified that some, if not all, of
  the fencing materials were purchased by his father, [D. R.] Beeler.
  These fences interfere with the use and possession of the land by
  [Fuqua.].

• [The Beelers] continue to claim and now claim they own 5/6th of [the
  property.]




                                      9
         Beeler did not file a reporter’s record of the 2009 contempt hearing with his

habeas petition, and he does not address the findings signed on September 25, 2009. He

argues the 2009 contempt judgment concerned cattle, not trees and fences. Beeler refers

this Court to counsel’s arguments in the hearings conducted in 2012 to the effect that

none of Fuqua’s witnesses could positively state who erected and repaired the fence on

Fuqua’s property or who owned the cattle that made the trail on Fuqua’s property. Beeler

suggests that testimony regarding signs of recent activity on the property will not support

the contempt judgment.

         The purpose of the 2012 hearing was to determine whether an order of

commitment should issue. During the 2012 hearing, Beeler admitted that he has seven

head of cattle with his son’s herd on adjacent property, and that he had rebuilt fence

along an open pasture on the property. Beeler initially denied having done so in the last

one and one-half years, but he admitted he ran his cattle with his son’s cattle. A person

who inspected the property in August 2012 found an electric fence that was powered

from a source connected to the younger Beeler’s house. The witness observed cattle

moving on Beeler’s property and found evidence of cattle activity in the back pasture on

the property. Beeler testified he understood that the 2009 contempt judgment required

him to remove his cows from the property. The evidence supports the trial court’s finding

that Beeler did not purge himself of contempt, and that the commitment order should

issue.


                                            10
                        PUNISHMENT FOR MULTIPLE VIOLATIONS

       Beeler argues the order imposed a single punishment for running the Beelers’

cattle on the property and for erecting fences and cutting trees. He suggests the entire

order is void because he was not given notice that Fuqua would complain about fences

and trees. See generally Ex parte Lee, 704 S.W.2d 15, 17 (Tex. 1986) (“If one

punishment is assessed for more than one act of contempt, and one act is not punishable

by contempt, the entire judgment is void.”). However, Beeler was given notice of the act

of contempt: violating the permanent injunction by using the property he does not own

and interfering with Fuqua’s use of the property. The question in 2012 was whether he

had purged himself of that contempt. The circumstantial evidence submitted supports

Fuqua’s position that Beeler had not purged himself of contempt. The order is not void.

                                        STANDING

       Beeler argues the executor of Fuqua’s estate was not properly made a party to the

suit. When a party dies after judgment but before the appeals are exhausted, the case may

proceed as if all parties were alive. See Tex. R. Civ. P. 156; Tex. R. App. P. 7.1(a). The

habeas record includes a copy of the oath of the executor, and the executor of Fuqua’s

estate has participated in the post-judgment proceedings. There is no defect of parties that

would deprive the trial court of jurisdiction or make the contempt order void.

       Beeler also argues the contempt order is void because another party claims

ownership of the property. This issue has been decided adversely to Beeler. See Beeler,


                                            11
2004 WL 1902535, at *1. The jury failed to find Beeler had an interest in the property.

Beeler cannot defeat recovery by showing Fuqua is a co-tenant. See Steddum, 221 S.W. at

922. Beeler established no title or ownership interest in the property; that ruling inures to

the benefit of Fuqua’s co-tenants. See Cook v. Spivey, 174 S.W.2d 634, 636 (Tex. Civ.

App.—Amarillo 1943, no writ).

                           CRUEL AND UNUSUAL PUNISHMENT

       Finally, Beeler suggests that this Court may “consider the egregious violations of

the Texas Prison Handbook by the Hardin County Jail.” Neither the handbook nor proof

of its violation is included in the habeas record. The habeas record contains an unsigned

and unattributed narrative, evidently by a younger Beeler, but this narrative neither

establishes the minimum conditions for confinement nor shows that the conditions of

Beeler’s confinement implicate the Eighth Amendment. See generally Harris v. Angelina

Cnty., Tex., 31 F.3d 331, 334 (5th Cir. 1994) (To maintain an Eighth Amendment claim,

a prisoner must show that his confinement resulted in an objectively, sufficiently serious

deprivation that denies the minimal civilized measure of life’s necessities.). Even if an

original habeas proceeding under section 22.221 of the Texas Government Code is an

appropriate vehicle for challenging the jail conditions, Beeler has not shown he is entitled

to relief on that basis. See Tex. Gov’t Code Ann. § 22.221(d) (West 2004). After

reviewing the petition, the response, and the record submitted by the parties, we deny




                                             12
habeas relief and rescind our order of release on bond. Beeler is remanded to the custody

of the sheriff.

       PETITION DENIED.

                                                      ___________________________
                                                            DAVID GAULTNEY
                                                                  Justice




Submitted on November 19, 2012
Opinion Delivered January 24, 2013

Before McKeithen, C.J., Gaultney and Kreger, JJ.




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