Ex Parte Rhodes

KELLER, Judge,

concurring.

Although I am uncertain that appellee would prevail under the analysis in Justice Scalia’s opinion in United States v. Dixon, 509 U.S. 688 , 113 S.Ct. 2849 , 125 L.Ed.2d 556 (1993), I nevertheless concur in the judgment because I believe that appellee prevails under Chief Justice Rehnquist’s analysis, and I believe that the Chief Justice’s double jeopardy approach is the correct one. 1

*743 Criminal contempt has the following elements: (1) violation of a court order, (2) court order is reasonably specific, and (3) a “willful” mental state. Ex Parte Chambers, 898 S.W.2d 257, 259 (Tex.1995). A “willful” mental state is essentially the equivalent of recklessness. See United States v. Burstyn, 878 F.2d 1322, 1324 (11th Cir.1989)(willfulness means “behavior amounting to a reckless disregard for the administration of justice”); Chambers, 898 S.W.2d at 259 (citing Burstyn). Interference with child custody, as relevant here, contains the following elements: (1) taking or retaining a child younger than 18 years, (2) violation of a court order, (3) the violation is of the express terms of the order, (4) the court order disposes of the child’s custody, and (5) a “knowing” mental state. 2 Texas Penal Code § 25.03(a)(1). The requirement that the violation of an order be of its “express terms” encompasses the requirement that the order itself be reasonably specific. See Cabrera v. State, 647 S.W.2d 654, 655 (Tex.Crim.App.1983) (order must be specific enough to give notice that defendant’s action is a violation of the law). And, a reasonably specific order requirement is necessary to satisfy the dictates of due process. See Ex Parte Swate, 874 S.W.2d 831, 833 (Tex.App.—Houston [14th Dist.] 1994).

According to Chief Justice Rehnquist, “Blockburger’s 3 same-elements test requires us to focus not on the terms of the particular court orders involved, but on the elements of contempt of court in the ordinary sense.” Dixon, 113 S.Ct. at 2865 , 125 L.Ed.2d at 579 (opinion of Rehnquist, C.J.). He characterized contempt as having two elements: (1) a court order made known to the defendant, and (2) willful violation of that order. Id. at 2865-2866, 125 L.Ed.2d at 580 . In Dixon , the Chief Justice explained that the elements of contempt, under his formulation, had nothing to do with the elements of the substantive crimes of assault and drug distribution. Id. at 2866-2867, 125 L.Ed.2d at 581 . Hence, the substantive offenses and the contempt offense were not the “same” under his interpretation of the Blockburger test. The Chief Justice cautioned that a jeopardy bar should be applied only to offenses that can be “analogized to greater and lesser included offenses.” Dixon, 113 S.Ct. at 2867-2868 , 125 L.Ed.2d at 582 .

But, under Rehnquist’s analysis, the contempt offense in the present case is a lesser included offense of the crime of interference with child custody. I have already set forth the elements of contempt in the abstract as the Chief Justice proposes. All of those elements are included in the proof required for the Penal Code offense of interference with child custody. That is, to prove interference with child custody, one must show that (1) a court order is violated, (2) the court order is reasonably specific, (3) a “knowing” mental state, which is a greater mental state than willfulness, and (4) additional elements (rendering interference with child custody the greater offense). What makes this case different from Dixon , under .Rehnquist’s opinion, is that the “substantive crime” in the present ease is in essence a “contempt plus” crime. By its very terms, § 25.03 is concerned with the culpable violation of court orders. Hence, while Rehnquist’s analysis would have saved the substantive crimes from a jeopardy bar in Dixon , that analysis can provide no comfort to the State in the present case.

I concur in the Court’s judgment.

. Due to my analysis of Chief Justice Rehnquist's opinion and my agreement with the result reached in the present case, I need not explain why I believe Justice Scalia’s opinion might lead to a contrary conclusion. Judge McCormick's argument for ignoring the fractured Supreme Court opinion in Dixon and following Texas precedent is appealing. However, Dixon is, at least arguably, binding precedent. A majority of the Court subscribed to the Chief Justice’s interpretation of the Blockburger test, at least as the minimum protection for double jeopardy purposes. See Dixon, 113 S.Ct. at 2887 , 125 L.Ed.2d at 606 (opinion of Souter, J.)(distinguishing test formulated in Harris v. Oklahoma, 433 U.S. 682 , 97 S.Ct. 2912 , 53 L.Ed.2d 1054 (1977) from a true Blockburger analysis); see also Dixon, 113 S.Ct. at 2856-2857 , 125 L.Ed.2d at 569 (opinion of Scalia, J,)(Harris is the basis of Justice Scalia’s "Blockburger" analysis).

I also note that the private party distinction announced by the Court of Appeals was at least implicitly rejected by the Chief Justice when he joined part I of Justice Scalia’s opinion in Dixon. See 113 S.Ct. at 2865 , 125 L.Ed.2d at 579 (opin *743 ion of Rehnquist, C.J.). Part I of Justice Scalia’s opinion held that criminal contempt is "a crime in the ordinary sense” and that "the protection of the Double Jeopardy Clause attaches.” 113 S.Ct. at 2855-2856 , 125 L.Ed.2d at 567-568 .

Finally, without expressing any opinion concerning the advisability of the lead opinion’s "tallying” approach to deciding cases under Dixon , I do note that my analysis of the Chief Justice’s view of Blockburger shows that appellee would prevail under that approach, even absent support from Scalia’s opinion in Dixon . Chief Justice Rehnquist's opinion received three votes (himself and Justices O’Connor and Thomas). Adding those three votes to the votes that would be produced from the opinions authored by Justices White and Souter (joined by Justice Stevens) yields a majority vote of six in appellee’s favor.

. The statute provides:

(a) A person commits an offense if he takes or retains a child younger than 18 years when he:

(1) knows that his taking or retention violates the express terms of a judgment or order of a court disposing of the child’s custody.

. Blockburger v. United States, 284 U.S. 299 , 52 S.Ct. 180 , 76 L.Ed. 306 (1932).