                                       NO. 07-08-0239-CV

                              IN THE COURT OF APPEALS

                       FOR THE SEVENTH DISTRICT OF TEXAS

                                         AT AMARILLO

                                           PANEL B

                                 SEPTEMBER 5, 2008
                           ______________________________

                               In re: STEPHEN E. MEIWES,

                                                 Relator
                         _________________________________

             Original Proceeding on Petition for Writ of Habeas Corpus
                        _______________________________

Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.

       Before us is an application for writ of habeas corpus filed by Stephen E. Meiwes.

He was held in contempt for violating a protective order entered by the trial court while he

and his wife, Jane Meiwes were being divorced. We deny the application.

       Issue One – Due Process

       Meiwes initially contends that he was denied due process because he was denied

notice of the contempt motion and hearing. We conclude that the issue was waived for he

generally appeared at the hearing and said nothing about the absence of a show cause

order or the execution of process upon him. See Ex parte Linder, 783 S.W.2d 754, 758-59

(Tex. App.–Dallas 1990, orig. proceeding) (holding that by appearing at and participating

in the contempt hearing, the accused waived any complaint he had regarding the

irregularity of service of process).
       Issue Two – Order Was Beyond the Trial Court’s Jurisdiction

       Next, Meiwes contends that the protective order he violated was void since it

exceeded the trial court’s jurisdiction. Furthermore, it purportedly exceeded that jurisdiction

because the court could not grant relief in the November 2005 Modified Protective Order

that prohibited his use of violence against or barred him from contacting anyone other than

family members. We reject the issue because the order of contempt was based upon

contact with family, as opposed to non-family members.

       It is well-settled that portions of a decree that are void can be severed from those

which are valid as long as the latter are not dependent upon the former. Blaylock v. Riser,

163 Tex. 235, 354 S.W.2d 134, 137 (1962). So, assuming arguendo that the trial court

could not bar Meiwes from contacting or harming non-family members, we do not consider

its authority to bar contact with and injury to family members as dependent upon the

provisions encompassing non-family members. Thus, the provisions which Meiwes was

found to have violated were both separable from those which were purportedly invalid and

unenforceable.

       Issue Three – Jury Trial

       Next, Meiwes contends that he should have been granted a jury trial when the court

considered the motion for contempt. We overrule the issue because the punishment

imposed (45 days incarceration) fell within the realm of a petty crime, and one is not

entitled to a jury trial when charged with such a crime. In re Brown, 114 S.W.3d 7, 10-12

(Tex. App.–Amarillo 2003, orig. proceeding) (finding that the complainant was not entitled




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to a jury trial because his punishment for contempt did not exceed six months

incarceration).

        Issue Four – Void Judgment

       Meiwes’ issue number four has several components. The first one that we address

concerns whether the protective order he violated was interlocutory. If it was, then nothing

allegedly existed upon which to base the contempt action since the protective order would

have merged into the final decree of divorce. We disagree. The majority of courts that

have considered whether protective orders are final or interlocutory have likened them to

permanent injunctions and deemed them to be final if they disposed of all issues and

parties. Vongontard v. Tippit, 137 S.W.3d 109, 110-11 (Tex. App.–Houston [1st Dist.] 2004,

no pet.) (and the cases cited therein). This concept follows that found in §81.009 of the

Family Code. There, we are told that protective orders are appealable but must await

appeal until a final judgment is executed in the primary suit. TEX . FAM . CODE ANN .

§81.009(a), (b), & (c) (Vernon Supp. 2008) (prohibiting the appeal until a final judgment

dissolving the marriage is executed or a final order providing for the support or possession

of the child is executed). Moreover, from §81.009 we deduce another bit of important

information. If one must wait until after the judgment becomes final to appeal, then the

protective order must survive entry of the judgment; if this were not so, then there would

be nothing to appeal.1

        Next, Meiwes believes that the contempt order was void because “[w]hen the

contempt motion says one thing, and [the] order . . . says another, then the order of


        1
        Of course, if the effect of the protective order had a date finite written into it and the m isconduct
occurred thereafter, the result m ay differ.

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contempt is void.” Additionally, he cites the opinion in Ex parte Gordon, 584 S.W.2d 686

(Tex. 1979) as support for the proposition. Interestingly, Gordon dealt with a situation

wherein the motion for contempt charged the accused with violating one provision of a prior

order. Yet, he was tried for allegedly violating a different provision. We do not have that

situation here. Meiwes was charged, via the motion, with seven violations of the modified

protective order. The trial court, via its order of contempt, expressly found him in violation

of two of the seven. So, we reject the issue since we do not have before us circumstances

like those in Gordon.

       Issue Five – Ineffective Assistance of Counsel

       Next, Meiwes posits that he was denied the effective assistance of counsel in his

criminal contempt proceeding. We overrule the issue.

       Assuming arguendo that one has the right to effective counsel at a contempt

proceeding, Meiwes had the burden to prove that he was denied same. Thompson v.

State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999). This meant that he not only had to

prove that counsel’s actions were deficient but also that they caused prejudice. Id. at 812-

13. Moreover, when the record is silent as to why trial counsel did what he did, then we

generally presume that the decision was part of some reasonable trial strategy. Garza v.

State, 213 S.W.3d 338, 348 (Tex. Crim. App. 2007).

       In perusing the record before us, we are cited to no admissible testimony from trial

counsel explaining why he may or may not have undertaken the acts of which Meiwes

complains. This is of import because the decisions to 1) allow Meiwes to testify on his own

behalf (rather than invoke the right against self-incrimination and remain silent) and 2)



                                              4
forego objection to the enforcement of valid parts of the protective order may have been

based upon counsel’s belief that it is better to be cooperative and open with the trial court

rather than contumacious and secretive. This seems especially so when it is one of the

trial court’s own orders that Meiwes was said to have purposefully violated. Moreover, we

find no flaw in trial counsel’s alleged failure to request a jury when, as discussed above,

his client was not necessarily entitled to one. Indeed, the decision could have been based

upon the belief that foregoing a jury trial would effectively restrict the period in which his

client could be sentenced to jail. So, in short, we conclude that Meiwes did not carry his

burden in proving that he received ineffective assistance of counsel.

       Each issue raised by Meiwes is overruled, and the application for habeas corpus is

denied.



                                                  Brian Quinn
                                                  Chief Justice




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