                                                                                            ACCEPTED
                                                                                      01-14-00989-CV
                                                                             FIRST COURT OF APPEALS
                                                                                     HOUSTON, TEXAS
                                                                                  2/11/2015 6:27:25 PM
                                                                                  CHRISTOPHER PRINE
                                                                                                CLERK

                        Cause No. 01-14-00989-CV

                                                                       FILED IN
                                                                1st COURT OF APPEALS
                                                                    HOUSTON, TEXAS
                       In the First Court of Appeals
                                                                2/11/2015 6:27:25 PM
                              Houston, Texas
                                                                CHRISTOPHER A. PRINE
                                                                        Clerk



                In Re SHAYNA (DEBOISE) HERRING,

                                  Relator


             Original Proceeding from Cause No. 2010-45732
         From 247TH Judicial District Court of Harris County, Texas
                 The Honorable John Schmude, Presiding


  REAL PARTY IN INTEREST’S RESPONSE TO PETITION FOR
               WRIT OF HABEAS CORPUS


CASTON LEE DEBOISE                          Of Counsel:
REAL PARTY IN INTEREST/PETITIONER
                                            TERISA TAYLOR
                                            State Bar No. 24000240
                                            GRACE M. CRUMP
                                            State Bar No. 24083482
                                            LAW OFFICE OF TERISA TAYLOR, P.C.
                                            917 Franklin Street, Suite 510
                                            Houston, Texas 77002
                                            Tel: (713) 224-990
                                            Fax: (713) 224-9903

              ATTORNEYS FOR REAL PARTY IN INTEREST
                                          TABLE OF CONTENTS

                                                                                                                      Page

TABLE OF CONTENTS ...............................................................................................               i

APPENDIX .................................................................................................................... ii

INDEX OF AUTHORITIES ............................................................................................ ii

STATEMENT OF THE CASE ..................................................................................... 1

LAW AND ARGUMENTS .......................................................................................... 4

I. It was Proper for the Trial Court to Hold Relator in Contempt for Failing to
   Comply with One Provision of the Court’s Order Under the Facts of this Case ..... 4

II. The Order Holding Respondent in Contempt and for Commitment to County
     Jail Signed on December 11, 2014 is Not Void ...................................................... 6

III. The Trial Court Did Not Have A Duty to Admonish Relator of Her Right to a
     Jury Trial ................................................................................................................ 7

IV. The Court Did Not Commit Error by Awarding Real Party in Interest 180
    Days as Make-Up Periods of Possession ............................................................... 8

V. Given the Evidence Presented, The Court Did Not Commit Error in Finding
   Relator to Be in Contempt ....................................................................................... 12

CONCLUSION ............................................................................................................. 14

RELIEF SOUGHT ......................................................................................................... 15




                                                            i
                                                   APPENDIX

Motion for Enforcement by Contempt of Possession and Access and Order to Appear,
Filed April 24, 2013 ......................................................................................................... A

Opposed Motion to Enter Order Holding Respondent in Contempt,
Filed November 22, 2013……………………………………………………………                                                                               B

Opposed Motion to Enter Order Holding Respondent in Contempt,
Filed May 9, 2014 …………………………………………………………………...                                                                               C

Order Holding Respondent in Contempt and for Commitment to County Jail ……..                                                  D

Motion to Compel Commitment to County Jail …………………………………….                                                                   E

Respondent’s Special Exceptions …………………………………………………                                                                          F



                                       INDEX OF AUTHORITIES

CASES                                                                                                            Page

     Muniz v. Hoffman, 422 U.S. 454 (1975) ........................................................                    7

     Taylor v. Hayes, 418 U.S. 488 (1974) ................................................................             8

     Byrd v. State, 336 S.W.3d 242 (Tex.Crim.App. 2011) ......................................... 12, 13

     Ex Parte Browne, 543 S.W.2d 82 (Tex.1976) .....................................................                   4

     Ex Parte Chambers, 898 S.W.2d 257 (Tex.1995)................................................                      4

     Ex Parte Gordon, 584 S.W.2d 686 (Tex. 1979) ..................................................                    9

     Ex Parte Merrikh, 361 S.W.3d 209 (Tex. App.—Houston [14th Dist.] 2012) .......                                    9

     Ex Parte Rohleder, 424 S.W.2d 891 (Tex. 1967) ................................................                    9

     Ex Parte Stein, 331 S.W.3d 538 (Tex. App.—Houston [14th Dist.] 2011) ............                                 9

     Ex Parte Werblud, 536 S.W.2d 542 (Tex. 1976) ................................................. 7, 8



                                                           ii
  In re Corder, 332 S.W.3d 498 (Tex.App. – Houston [1st Dist.] 2009) ...................                                8

  In re Long, 984 S.W.2d 623 (Tex. 1999) ............................................................                   9

  In re Prudential Ins. Co. of America, 148 S.W.3d 124 (Tex. 2004) ......................                               9

  Walker v. Parker, 827 S.W.2d 833 (Tex. 1992) ..................................................                       10


STATUES                                                                                                         Page

  18 U.S.C.A. §1 ....................................................................................................       7

  Tex. Fam. Code §153.704 ..................................................................................... 12

  Tex. Fam. Code §153.705 ..................................................................................... 12

  Tex. Fam. Code §157.006 .....................................................................................             4

  Tex. Fam. Code §157.111 .....................................................................................             4

  Tex. Fam. Code §157.168 ................................................................................. 10

  Tex. Gov’t Code §21.002 ................................................................................... 8

  Tex. Rule of Civ. Proc. §94 ............................................................................... 4




                                                        iii
                                    STATEMENT OF FACTS

       On January 31, 2011, the 247th Judicial District Court of Harris County, Texas, signed an

Agreed Order in Suit Affecting the Parent-Child Relationship and Declaratory Judgment. That

Order appointed Relator and Real Party in Interest as joint managing conservators of the child

the subject of the suit. Relator was granted the exclusive right to designate the primary residence

of the child within Harris and contiguous counties. Real Party in Interest was granted a standard

possession order. Both parties were granted telephone access to the child to supplement their

periods of possession and a right of first refusal to care for the child in the event the parent

currently entitled to possession would be away from the child for four or more hours.


       On April 24, 2013, Real Party in Interest filed a Motion for Enforcement by Contempt of

Possession and Access and Order to Appear. (Real Party in Interest’s Exhibit A). On June 25,

2013, Relator filed a Petition to Modify Parent-Child Relationship. A hearing on Real Party in

Interest’s Enforcement was held on June 26, 2013 and Relator appeared with counsel. On June

26, 2013, the trial court found Relator in contempt on 12 separate violations of the court’s order.

Relator was ordered to serve 180 days in the Harris County Jail on each weekend beginning June

28, 2013. Relator was ordered to pay attorney’s fees to Real Party in Interest’s attorney in the

amount of $2,545.40 and Real Party in Interest was granted possession of the child while Relator

was confined to the Harris County jail each weekend.


       At the entry of the Order Holding [Relator] in Contempt and for Commitment to County

Jail, Relator appeared with new counsel and requested a new trial based on ineffective assistance

of counsel. The entry of the Order was reset and the trial court ordered the parties to mediate.

The parties attended mediation on October 24, 2013 and it resulted in an impasse. On October



                                                   1 
 
30, 2013, Real Party in Interested filed an Opposed Motion to Enter Order Holding [Relator] in

Contempt and a hearing was set for November 22, 2013. (Real Party in Interest’s Exhibit B).


        On November 22, 2013, at the hearing to enter the Order holding Relator in contempt, the

trial court ordered both parties to submit trial briefs on whether Relator was entitled to a

rehearing. Both parties submitted briefs to the trial court on December 2, 2013. Subsequently, the

Court made no rulings on Relator’s request for new trial and did not sign the Order holding

Relator in contempt. On May 9, 2014, Real Party in Interest filed a second Opposed Motion to

Enter Order Holding [Relator] in Contempt and for Commitment to County Jail. (Real Party in

Interest’s Exhibit C).


        On August 26, 2014, without a hearing or notice to either party, the trial court signed the

Order holding Relator in contempt. (Real Party in Interest’s Exhibit D). The visiting judge

amended the order to command Relator to begin serving her 180 days sentence on August 24,

2014 and requiring her to pay attorney’s fees to Real Party in Interest’s attorney by September 1,

2014.


        On or about September 8, 2014, Relator hired yet another attorney, who filed a Motion

for New Trial on September 25, 2014. On September 26, 2014, Real Party in Interest filed a

second Motion for Enforcement by Contempt of Possession and Access and Order to Appear.

During this period, Relator failed to report to the Harris County Jail for commitment on the

weekends. On October 30, 2014, Real Party in filed a Motion to Compel Commitment to County

Jail. (Real Party in Interest’s Exhibit E). A hearing on both Real Party in Interest’s motions was

heard on December 8, 2014.




                                                  2 
 
       On December 8, 2014, the trial court declined to commit Realtor to jail under the first

Order holding her in contempt citing too much time had passed. The trial court then found

Relator in contempt on one violation from Real Party in Interest’s second Motion for

Enforcement and ordered her to 180 days in the Harris County jail to be served on the weekends

beginning Friday, December 12, 2014. The trial court also ordered a make-up period of

possession for Real Party in Interest and ordered Real Party in Interest to have possession of the

child while Relator served her weekends in jail. The trial court also ordered Relator to pay an

additional $3,000 in attorney’s fees to counsel for Real Party in Interest.


       The Order holding Relator in contempt and ordering her commitment to the Harris

County jail was entered and signed by the Court on December 11, 2014.




                                                  3 
 
    I.      IT WAS PROPER FOR THE TRIAL COURT TO HOLD RELATOR IN
            CONTEMPT FOR FAILING TO COMPLY WITH ONE PROVISION OF THE
            COURT’S ORDER UNDER THE FACTS OF THIS CASE.
         The Texas Supreme Court has broadly defined contempt as "disobedience to or disrespect

    of a court by acting in opposition to its authority." Ex parte Chambers, 898 S.W.2d 257, 259

    (Tex.1995) (orig. proceeding). The Supreme Court also observed that contempt is a broad

    and inherent power of a court. See, Ex parte Browne, 543 S.W.2d 82, 86 (Tex.1976) (orig.

    proceeding).


         With this issue, Relator is essentially claiming that she had an affirmative defense of

    justification in violating the trial court’s possession order. Under the Texas Rules of Civil

    Procedure, any and all affirmative defenses must be affirmatively pled. TRCP 94. Relator

    failed to file a general denial in this case, let alone an answer that pled affirmative defenses.

    Relator should be precluded from arguing her affirmative defense for the first time in her

    Petition for Writ of Habeas Corpus.


         Additionally, under the Texas Family Code, the respondent in a motion for enforcement

    must prove affirmative defenses by a preponderance of the evidence. Tex. Fam. Code.

    §157.006 (b). The trial court had the benefit of hearing live testimony from several witnesses,

    including Relator, SHAYNA (DEBOISE) HERRING, and Real Party in Interest, CASTON

    LEE DEBOISE. As the exclusive judge of the credibility of the witnesses, the trial court did

    not believe Relator's testimony that she withheld visitation in an attempt to protect the child

    from Real Party in Interest, (CR 74-5, 79, 81-2). The evidence regarding Relator withholding

    visitation from Real Party in Interest included evidence that Relator also withheld visitation

    from the father of another one of her children the same day, (CR 37), ignored text messages

    and phone calls from both fathers, (CR 34-7, 46, 83-5), did not file any emergency pleadings

                                                 4 
 
    with the trial court to suspend Real Party in Interest’s periods of visitation, (CR 50 and 86-7)

    and has a history of withholding visitation and alienating the child from the Real Party in

    Interest, (CR 20-2, 38-9, 43-4, 93-7), supported a reasonable belief that Relator violated the

    possession order out of malice and not out of a duty to protect the child, (CR 93-5, 97-8).


       This was a thinly veiled attempt to justify her actions as in the child’s best interests,

    when, in fact, they are simply to create disruption and discord, and to try to alienate the Real

    Party in Interest from his child. The Relator’s true motives are exposed by the fact that she

    made no efforts to try to have authorities or the courts intervene; if she had a genuine concern

    for their child’s safety, she would have filed emergency pleadings with the court to modify

    Real Party in Interest’s possession of the child. The trial court did find that Relator has

    proved her defenses by a preponderance of the evidence.


       Additionally, in her Petition for Writ of Habeas Corpus, Relator claims that her attorney

    on August 15, 2014 “was unable to advise her what to do” on that date. (Relator’s Petitioner

    for Writ of Habeas Corpus, page 10). However, at the hearing on Real Party in Interest’s

    Motion for Enforcement, Relator clearly stated multiple times that she consulted her attorney

    and was advised by her attorney what to do in that situation, (CR 81, 85-6). Regardless, the

    advice of Relator’s attorney on August 15, 2014 is not a defense to the Motion for Contempt.

    Tex. Fam. Code §157.111.


       Finally, to allow Relator to use her duty to protect the child as both a sword and a shield

    would be against public policy. Permitting Relator to withhold visitation because of an

    alleged potential harm to the child would set a dangerous precedent. Parents would be

    allowed to withhold visitation because of the mere possibility the child and the other parent


                                                 5 
 
      might get into a car accident while driving away from the first parent’s residence. For all the

      reasons stated above, it was proper for the trial court to hold Relator in contempt for failing

      to comply with one provision of the court’s order under the facts of this case, and if

      necessary, order a new start date.


II.      THE ORDER HOLDING RESPONDENT IN CONTEMPT AND FOR
         COMMITMENT TO COUNTY JAIL SIGNED ON DECEMBER 11, 2014 IS NOT
         VOID.
         During its rendition on December 8, 2014, the trial court told Relator no less than three

times where she was to report to jail and on what date and time, (CR. 93-5). The trial court was

extremely clear about when Relator’s commitment to the Harris County jail was to commence

and there can be no doubt in Relator’s mind as to when and where she was to report. The date on

the Order signed by the Court ordering Relator to submit herself to the county jail on June 28,

2013, (Relator’s Exhibit 3, page 3), was clearly a drafting error. Counsel for Relator was

provided with a copy of the Order Holding Relator in Contempt and for Commitment to County

Jail prior to the entry of the Order on December 11, 2014. Counsel for Relator did not provide

counsel for Real Party in Interest any proposed changes to the Order, refused to sign the Order

and did not appear at the entry. Instead, counsel for Relator addresses this issue for the first time

in his Petition for Writ of Habeas Corpus. The paper order signed by the trial court judge is

simply the memorialization of the order rendered by the judge on December 8, 2014; the order

rendered by the judge is the one, repeated throughout the record, that the Relator is to turn

surrender herself to the custody of the Harris County Jail at 6:00 p.m. on December 12, 2014.

Therefore, the Order holding Relator in Contempt is not void.

         However, if this Court finds that the Order Holding Respondent in Contempt and for

Commitment to County Jail is void because of the drafting error, the remedy is not to hold that


                                                  6 
 
the entire order is void. If this Court finds that the order is void for the drafting error, the Real

Party in Interest requests this Court to remand the Order to the trial court for a correction to the

date, and if necessary, order a new date for Relator to begin commitment in the Harris County

jail.


III.    THE TRIAL COURT DID NOT HAVE A DUTY TO ADMONISH RELATOR
        ON HER RIGHT TO A JURY TRIAL.
        The trial court did not have a duty to admonish Relator on her right to a jury trial because

in this case Relator did not have a right to a jury trial. In a contempt case, a contemnor’s right to

a jury trial depends on whether the offense may be classified as petty or serious. Ex parte

Werblud, 536 S.W.2d 542, 546 (Tex. 1976). The difference between a petty offense and a serious

offense was most notably established in the United States Supreme Court decision in Muniz v.

Hoffman, 422 U.S. 454 (1975). Muniz established the following rules:


        “(1) Like other minor crimes, 'petty' contempts may be tried without a jury, but
        contemnors in serious contempt cases in the federal system have a Sixth Amendment
        right to jury trial;

        (2) criminal contempt, in and of itself and without regard for the punishment imposed, is
        not a serious offense absent legislative declaration to the contrary;

        (3) lacking legislative authorization of more serious punishment, a sentence of as much as
        six months in prison, plus normal periods of probation may be imposed without a jury
        trial;

         (4) but imprisonment for longer than six months is constitutionally impermissible unless
        the contemnor has been given the opportunity for a jury trial.”

Id., at 475-6. Under Federal criminal law, six months imprisonment is the litmus test for

determining whether an offense is considered a petty offense or a serious offense. 18 U.S.C.A. §

1(3). A Federal Court that uses its contempt authority to punish a contemnor for a period of time




                                                 7 
 
that is not more than six months does not have to grant a jury trial on that issue to the contemnor.

Taylor v. Hayes, 418 U.S. 488, 94 S.Ct. 2697 (1974).


      The State of Texas follows suit. Ex parte Werblud, 536 S.W.2d 542 (Tex. 1976). The statute

which authorizes punishment for criminal contempt allows punishment by a fine of not more

than $500, or by confinement in the county jail for not more than six months, or both. Tex. Gov’t

Code §21.002(b). Additionally, this Court ruled in In re Corder, that the trial court’s duty to

admonish the contemnor of their right to a trial by jury only arises if serious punishment is

actually imposed. In re Corder, 332 S.W.3d 498, 501 (Tex.App. – Houston [1st Dist.] 2009).

The trial court’s duty to admonish the contemnor is not triggered by the fact that serious

punishment is a possible outcome. Id.


         In this case, Real Party in Interest pled for contemnor to be jailed for not more than 180

days for each violation, and fined not more than $500 for each violation alleged in his Motion for

Enforcement by Contempt of Possession and Access. (Relator’s Exhibit 1, page 6). Relator was

found to be in in contempt and punishment for each separate violation was assessed at

confinement in the county jail of Harris County, Texas, for a period of 180 days, or 6 months.

(Relator’s Exhibit 3, pages 2-4). The actual punishment imposed on contemnor did not exceed

180 days. (Relator’s Exhibit 3, pages 2-4). Therefore, the trial court did not have a duty to

admonish Relator on her right to a jury trial.


IV.      THE COURT DID NOT COMMIT ERROR BY AWARDING REAL PARTY IN
         INTEREST 180 DAYS AS MAKE-UP PERIODS OF POSSESSION.
         Whether the trial court erred in awarding Real Party in Interest 180 days as make-up

visitation for the three days the trial court found that Relator had withheld is an issue that should

be considered in an original mandamus proceeding and not through a Petition for Writ of Habeas


                                                 8 
 
Corpus. Additionally, Relator cannot show that the trial court erred in ordering the make-up

periods of possession or that harm occurred from that order.


       a. Whether the trial court erred in granting Real Party in Interest 180 days in make-
          up visitation is an improper issue to be presented in a Petition for Writ of Habeas
          Corpus.
       Whether the trial court erred in granting Real Party in Interest 180 days in make-up

visitation is an improper issue to present to this Court through a Petition for Writ of Habeas

Corpus. The proper vehicle to address this issue with this Court would normally be through a

Writ of Mandamus. An Order of Mandamus is issued to correct a clear abuse of discretion by the

trial court when there is no adequate remedy by appeal. In re Prudential Ins. Co. of America,

148 S.W.3d 124, 135-36 (Tex. 2004) (orig. proceeding).          Since contempt orders are not

reviewable by appeal, if a trial court abuses its discretion by holding someone in contempt, there

is no other adequate remedy by appeal, and the second requirement of mandamus review is

satisfied. In re Long, 984 S.W.2d 623, 625 (Tex. 1999).


       In Texas Family Law, a habeas corpus proceeding is a collateral attack on a contempt

judgment. Ex parte Merrikh, 361 S.W.3d 209, 210 (Tex. App.—Houston [14th Dist.] 2012, orig.

proceeding) (per curiam); In re Stein, 331 S.W.3d 538, 540 (Tex. App.—Houston [14th Dist.]

2011, orig. proceeding) (per curiam); see also Ex parte Rohleder, 424 S.W.2d 891, 892 (Tex.

1967) (orig. proceeding). The purpose of a writ of habeas corpus is only to determine whether

the underlying contempt action met the requirements of due process of law or if the underlying

contempt or order of contempt was void. Merrikh, 361 S.W.3d at 210; Stein, 331 S.W.3d at 540;

see also Ex parte Gordon, 584 S.W.2d 686, 688 (Tex. 1979) (orig. proceeding).




                                                9 
 
       The issue of whether the trail court erred in granting Real Party in Interest 180 days of

make-up visitation is an issue of abuse of discretion and is not an issue of due process or whether

the contempt order is void.


       b. The trial court did not err in granting Real Party in Interest 180 days of make-up
          periods of possession.
       The Texas Family Code permits a trial court to award additional periods of possession

and access to a party to compensate for a pervious denial of court-ordered possession or access.

Tex. Fam. Code § 157.168(a). It is wholly within the discretion of the trial court to determine

whether to grant such an award. However, if the trial court chooses to grant the award, the

additional periods of access or possession "must be of the same type and duration of the

possession or access that was denied." Id. A trial court abuses its discretion when it reaches a

decision so arbitrary and unreasonable as to amount to a clear and prejudicial error of law.

Walker v. Packer, 827 S.W.2d 833, 839 (Tex. 1992) (orig. proceeding).


       In this case, Real Party in Interest was entitled to possession of the child “beginning at

6:00 p.m. on the first, third, and fifth Friday of each month and ending at 6:00 p.m. on the

following Sunday.” (Relator’s Exhibit 2, page 10). The trial court found that Relator had denied

Real Party in Interest one of his weekend periods of possession. (Relator’s Exhibit 3, page 2).

The trial court specifically granted Real Party in Interest an additional period of possession

beginning at 6:00 p.m. on December 12, 2014 and ending at 6:00 p.m. on the following Sunday

to compensate Real Party in Interest for the period of possession he was denied on August 15,

2014. (Relator’s Exhibit 3, page 4). This additional period of possession was clearly of the same

type and duration of the period that was denied.




                                                10 
 
       Additionally, the trial court ordered Real Party in Interest to have possession of the child

beginning at 6:00 p.m. on December 12, 2014 and each Friday thereafter for as long as Relator

was serving her weekend periods of confinement. (Relator’s Exhibit 3, page 4). Under the

Agreed Order in Suit Affecting Parent-Child Relationship and Declaratory Judgment, Real Party

in Interest was already entitled to possession of the child for roughly half of the weekends that

Relator was ordered to be confined in the Harris County Jail. (Relator’s Exhibit 2, pages 9-17).

Therefore, Relator’s argument that Real Party in Interest was ordered 180 days of make-up

visitation is inaccurate at best and misleads this Court. Further, Relator did not bring this issue to

the trial court’s attention (CR 93-7), and instead complains about for the first time in her Petition

for Writ of Habeas Corpus.


       Finally, the trial court has broad discretion to enforce its orders. At the enforcement

hearing, the trial court heard evidence that Relator continuously thumbs her nose at the trial court

and its orders, (CR 83-7, 93-8). The trial court also heard evidence that Relator has continuously

acted in bad faith and set out a course of conduct to alienate the child from Real Party in Interest

(CR 30-72). Furthermore, the trial court heard evidence that Relator often engages her family

members to assist her in setting out this course of conduct, (CR 39). It is with this evidence in

mind that the trial court ordered Real Party in Interest to have possession of the child while

Relator served her periods of confinement in the Harris County Jail.


       c. Alternatively, any error in granting make-up visitation was harmless error.
       Should the Court find that the trial court erred in awarding Real Party in Interest 180 days

as make-up periods of possession when the evidence showed that he had missed only three days,

it should also find that it was harmless error. It is a steadfast rule of Texas Family Law that the

superior right of possession that is granted to a parent through a possession order is for the

                                                 11 
 
benefit of that parent and is intended to be exercised by that parent. The superior right of

possession established by a possession order cannot be transferred to a step-parent, grandparent,

or any other relative in the absence of the parent with the superior right of possession. The only

time the Texas Legislature has ever carved out an exception that allows a parent to designate a

third party to exercise that parent’s period(s) of possession is in the case of active duty military

members. See, Tex. Fam. Code §153.704 & 153.705. It is clear that in most cases the Texas

Legislature never intended for visitation to be exercised by a step-parent, grandparent, or other

relative in the absence of a parent.


        In this case, with Relator ordered to spend every weekend in jail until she had served 180

days, Real Party in Interest would be the only person entitled to possession of the child during

Relator’s absence. Additionally, pursuant to the underlying Agreed Order in Suit Affecting

Parent-Child Relationship and Declaratory Judgment signed by the trial court on January 31,

2011, Real Party in Interest is entitled to a right of first refusal in the event that Relator will be

away from the child for four hours or more. (Relator’s Exhibit 2, page 17). Therefore, if the trial

court erred in awarding Real Party in Interest 180 days as make-up periods of possession when

the evidence showed that he had missed only three days it would be harmless error because

Relator cannot designate a third party to exercise her periods of possession while she is in jail

and Real Party in Interest would have simply notified Relator of his intent to exercise his right of

first refusal.


V.      GIVEN THE EVIDENCE PRESENTED, THE COURT DID NOT COMMIT
        ERROR IN FINDING RELATOR TO BE IN CONTEMPT.
        Any variance in this case between the allegations contained in Real Party in Interest’s

Motion for Enforcement and evidence presented at the hearing is immaterial. In Byrd v. State, the


                                                 12 
 
Texas Court of Criminal Appeals lays out a definition for variance and an informative discussion

on the difference between marital and immaterial variances:


       “Now suppose that the State proves that the defendant killed Dan McGrew, but every
       witness agreed that Dan was not at all dangerous and had never been called Dangerous.
       Or suppose that the evidence showed that the murder victim was really Don McGrew,
       Daniel Macgrew, or Dan Magoo. These are all examples of variances between the
       allegation and the proof, but they are little mistakes, generally not likely to prejudice a
       defendant's substantial rights by either (1) failing to give him notice of who it was he
       allegedly killed, or (2) allowing a second murder prosecution for killing the same person
       with a different spelling of his name. Little mistakes or variances that do not prejudice a
       defendant's substantial rights are immaterial. On the other hand, a conviction that
       contains a material variance that fails to give the defendant sufficient notice or would not
       bar a second prosecution for the same murder requires reversal, even when the evidence
       is otherwise legally sufficient to support the conviction.”

        Byrd v. State, 336 S.W.3d 242, at 246-8 (Tex.Crim.App. 2011).


       Pursuant to the underlying Agreed Order in Suit Affecting Parent-Child Relationship and

Declaratory Judgment, Real Party in Interest was permitted to designate any competent adult to

pick up the child at the beginning of Real Party in Interest’s periods of possession. (Relator’s

Exhibit 2, page 17). On August 15, 2014, Real Party in Interest designated the father of Relator’s

eight year old daughter to pick up his son at the beginning of Real Party in Interest’s period of

possession, (CR 45-6, 79). The other father was acting as an agent of and as an extension of Real

Party in Interest. Additionally, there was testimony that the fathers often pick up the children

together or that one father will pick up both children, (CR 32-3, 38-9, 40). Relator was on notice

that day that Real Party in Interest was sending a third party as his proxy. (CR 79). Further,

Relator stated that had Real Party in Interest not sent a proxy, she still would have denied him

visitation on August 15, 2014 (CR 79). Relator knew exactly whose possession of the child she

was denying. Therefore, any variance between the alleged violations and the evidence presented

at the hearing is immaterial.


                                                13 
 
       Finally, once again, Relator complains of this issue for the first time in her Petition for

Writ of Habeas Corpus. The alleged violation that Relator complains of in this issue was

“Violation 2” of Real Party in Interest’s Motion to Enforce (Relator’s Exhibit 1, page 5). On

November 12, 2014, Relator filed special exceptions to Real Party in Interest’s Motion to

Enforce. (Real Party in Interest’s Exhibit F). Relator did not specially except to “Violation 2”.

(Real Party in Interest’s Exhibit 1, pages 1-3).


       For the reasons stated above, the trial court did not err finding Relator in contempt.


                                          CONCLUSION


       The finding of contempt by the trial court was proper given the pleadings on file, the

evidence presented and the arguments made by counsel. Additionally, the Order Holding

Respondent in Contempt and for Commitment to County Jail is valid and should be enforced.

This Habeas processing is just another attempt by Relator to use smoke and mirrors to avoid

being held responsible for her violations and contempt. Relator has no respect for the judicial

system or the orders of the Court.




                                                   14 
 
                                         RELIEF SOUGHT


         Real Party in Interest requests that the Court of Appeals deny Relator's Writ for Habeas

Corpus.


         In the alternative, Real Pai1y in Interest requests the Court of Appeals to sever any

provisions of the Order it finds void and remand those provisions back to the trial court for

coITection.


                                               Respectfully submitted




                                               BycE,.•.- r1 -
                                                   TERISA TAYLOR
                                                   State Bar No. 24000240
                                                                              6rf2
                                                   GRACE M. CRUMP
                                                   State Bar No . 24083482
                                                   9 17 Franklin Street, Suite 5 10
                                                   Houston, Texas 77002
                                                   Tel: (713) 224-9900
                                                   Fax: (713) 224-9903
                                                   Attorneys for Caston Lee DeBoise




                                          WORD COUNT

          I, GRACE M. CRUMP, do hereby certify that the forego ing document contains 4,408
words.




                                                   c&.- Li. {!_~rr
                                                       GRACE M. CRUMP




                                                  15
                                    CERTIFICATE OF SERVICE

       I certify that on February 11 , 2015, a true and correct copy of this Response to Relator's
Petition for Writ of Habeas Corpus was served upon Relater and Respondent in accordance with
the Texas Rules of Civil Procedure and Appellate Procedure by eService and facsimile
transmission, to:

Judge John Schmude
24i11 Judicial District Court
201 Caroline Street, 15 111 Floor
Houston, TX 77002



George W. Dana
11550 Fuqua, Suite 340
Houston, Texas 77934
Tel: (281) 484-7500
Fax: (281) 484-9687



                                                     TERISA TAYLOR
                                                     GRACE M. CRUMP
                                                     Attorneys for Real Party in
                                                      Interest/Petitioner




                                                16
