Writ of Mandamus is GRANTED; Opinion Filed September 13, 2013.




                                         S    In The
                                Court of Appeals
                         Fifth District of Texas at Dallas
                                      No. 05-13-01077-CV

                             IN RE TODD TOMASELLA, Relator

                            On Appeal from the 86th District Court
                                  Kaufman County, Texas
                                Trial Court Cause No. 61378

                             MEMORANDUM OPINION
                           Before Justices FitzGerald, Lang, and Myers
                                     Opinion by Justice Lang
       Before the Court is relator’s petition for writ of habeas corpus relating to the trial court’s

March 28, 2013 “Order for Writ of Commitment for Todd Michael Tomasella, and Setting of

Bond.” Relator complains that he was wrongfully denied the right to a jury trial. We agree.

       The trial court’s order finds relator guilty of criminal contempt, sentences him to six

months plus an additional three months, and orders the sentences to run consecutively. Because

relator was sentenced to more than six months in jail, he was entitled to a trial by jury. See Ex

parte Sproull, 815 S.W.2d 250, 250 (Tex. 1991). Real party in interest agrees that relator’s

sentence for criminal contempt must be set aside. However, as real party in interest points out,

relator was also incarcerated on a finding of civil contempt. Relator has not challenged his

sentence for civil contempt, and we do not disturb the trial court’s findings or sentence related to

civil contempt.
       Therefore, we GRANT habeas corpus relief and VACATE the criminal contempt

portion of the written order dated March 28, 2013, entitled Order for Writ of Commitment for

Todd Michael Tomasella, and Setting of Bond, issued by the 86th Judicial District Court of

Kaufman County, Texas, in the case styled In the Interest of M.D.T., a Child. The portion of that

order committing Todd Michael Tomasella to the custody of the Sheriff of Kaufman County for

civil contempt remains in effect.     We ORDER that relator Todd Michael Tomasella be

unconditionally released and discharged from the custody of the Sheriff of Kaufman County

pursuant only to the criminal contempt portion of that order.




                                                     /Douglas S. Lang/
                                                     DOUGLAS S. LANG
                                                     JUSTICE

131077F.P05




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