# Ex Parte Rhodes

> Court of Criminal Appeals of Texas · July 1, 1998 · 974 S.W.2d 735

URL: https://www.frixlaw.com/law-library/cases/9769499

## Case

- **Full name:** Ex Parte David Eugene RHODES, Appellee
- **Court:** Court of Criminal Appeals of Texas
- **Decided:** July 1, 1998
- **Citations:** 974 S.W.2d 735; 1998 Tex. Crim. App. LEXIS 85; 1998 WL 348420
- **Precedential status:** Published
- **Opinion:** Dissent by MeCORMICK
- **Judges:** Price, Baird, Overstreet, Meyers, Holland, Womack, Keller, McCormick, Mansfield
- **Cited by:** 59 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9769499

## How later opinions describe it (automated extraction)

- holding that the Double Jeopardy Clause barred prosecution of parent for interference with child custody due to his previous criminal contempt conviction which was based on same conduct of taking child to live in another country without court approval

## Opinion text

*744 MeCORMICK, Presiding Judge,
dissenting.
Applicant violated a trial court’s custody order in a civil divorce ease by taking his and his ex-wife’s child out of the country. Upon request by applicant’s ex-wife the trial court in the civil proceeding found applicant in contempt for violating the court’s order. See generally Chapter 157, Texas Family Code. The trial court in the civil proceeding ordered applicant to pay a $100 fine, to compensate his ex-wife for her legal fees and to post a $2500 bond to ensure future compliance with the court’s order. The State of Texas now desires to prosecute applicant in a criminal proceeding for the criminal offense of interference with child custody which carries stiffer penalties than the $100 fine applicant was assessed in the civil proceeding. See V.T.C.A., Penal Code, Section 25.03. 1
However, the United States Supreme Court fairly recently decided United States v. Dixon which calls into question whether the Double Jeopardy Clause of the United States Constitution bars applicant’s criminal' prosecution for this criminal offense. See United States v. Dixon, 509 U.S. 688 , 118 S.Ct. 2849 , 125 L.Ed.2d 556 (1993). The trial court decided it did, the Court of Appeals decided it did not and now we must decide the question.
I.
Dixon contains five plurality opinions and it is difficult if not impossible to determine “the holding of the Court” on some of the issues addressed in Dixon. See Nichols v. United States, 511 U.S. 738 , 114 S.Ct. 1921, 1926 , 128 L.Ed.2d 745 (1994) (when a fragmented court decides a case and no single rationale explaining the result enjoys the assent of five Justices, the holding of the court may be viewed as that position taken by those members who concurred in the judgments on the narrowest grounds). 2 Under these circumstances, I vote to follow in cases like this Court’s decision in Ex parte Williams and to adhere to Texas’ traditional view that contempt proceedings in civil cases do not implicate double jeopardy principles. See Ex parte Williams, 799 S.W.2d 304 (Tex.Cr.App.1990); see also Dixon, 113 S.Ct. at 2865 , 125 L.Ed.2d at 579 (Rehnquist, C.J., concurring in part and dissenting in part, joined by O’Connor and Thomas, JJ.) (traditional view is that double jeopardy generally does not bar a subsequent prosecution based on conduct that was subject of prior contempt proceeding), and at 2879-81, 125 L.Ed.2d at 597-98 (Blackmun, J., concurring in the judgment in part and dissenting in part) (same).
II.
Since the majority opinion in this case attempts to determine the “holding of the court” in Dixon, I also set out my views on what Dixon holds and why Dixon does not prohibit applicant’s criminal prosecution. In Dixon, Dixon’s subsequent criminal prosecution and the five-count indictment in Foster’s subsequent criminal prosecution were all based on the “same conduct” that was the subject of prior contempt proceedings. See Dixon, 113 S.Ct. at 2853-55 , 125 L.Ed.2d at 565-66 (Sealia, J.). 3 A majority of the Court decided, as reflected by its judgment, that Dixon’s subsequent prosecution and only one of the counts in Foster’s subsequent prosecution were jeopardy-barred. See Dixon, 113 S.Ct. at 2864 , 125 L.Ed.2d at 578 (Sealia, J.) *745 (announcing the Court’s judgment that Dixon’s subsequent prosecution and Count I of Foster’s subsequent prosecution were jeopardy-barred but Counts II-V of Foster’s subsequent prosecution were not jeopardy-barred). This lays to rest any claim that the “holding of the court” in Dixon is that double jeopardy principles bar a subsequent prosecution “following a contempt proceeding involving the same conduct.”
III.
One of the majority holdings in Dixon that explains its judgment is “the protection of the Double Jeopardy Clause” attaches “in nonsummary criminal contempt prosecutions just as they do in other criminal prosecutions.” See Dixon, 113 S.Ct. at 2856 , 125 L.Ed.2d at 568 (Scalia, J., joined by Kennedy, J.), and at 2865, 125 L.Ed.2d at 579 (Rehnquist, C.J., concurring in part and dissenting in part, joined by O’Connor and Thomas, JJ.). Given the facts of Foster’s case, this holding effectively makes all “non-summary criminal contempt” 4 proceedings even those in civil cases the functional equivalent of a “criminal prosecution” for double jeopardy purposes. 5 This majority holding in Dixon is an extension of earlier cases which Dixon characterizes as holding that eontemnors in “nonsummary criminal contempt prosecutions” have various constitutional protections such as presumption of innocence, proof beyond a reasonable doubt, right to jury trial, etc. See Dixon, 113 S.Ct. at 2855-56 , 125 L.Ed.2d at 567-68 (Scalia, J.). 6
Under federal law, the distinction between “civil” and “criminal” contempt is not “easy to classify,” but it seems to turn primarily on the severity of the punishment assessed. See Gompers, 31 S.Ct. at 498 (it is not the fact of punishment, but rather its character and purpose, that often serve to distinguish between the two classes of cases), cited to support holding in Dixon, 113 S.Ct. at 2856 , 125 L.Ed.2d at 568 (Scalia, J.). Similarly, the right to a jury trial in “criminal contempt” proceedings turns on the seriousness of the contemplated punishment. See Bloom v. Illinois, 391 U.S. 194 , 88 S.Ct. 1477, 1485-86 , 20 L.Ed.2d 522 (1968) (contemnor has right to jury trial when serious punishment for “criminal contempt” is contemplated), cited to support holding in Dixon, 113 S.Ct. at 2856 , 125 L.Ed.2d at 568 (Scalia, J.).
Based on these authorities, the contempt proceeding in applicant’s civil divorce case cannot be characterized as a “criminal contempt prosecution.” See Dixon, 113 S.Ct. at 2856 , 125 L.Ed.2d at 568 (Scalia, J.) (double jeopardy protections apply in “nonsummary criminal contempt prosecutions”). Applicant’s $100 fíne for violating the trial court’s order in the civil divorce proceeding is not a severe punishment. See Bloom, 88 S.Ct. at 1485-86 ; Gompers, 31 S.Ct. at 498. Since applicant’s $100 fine is de minimis, his right to a jury trial did not attach in the contempt proceeding in the civil divorce case. See Bloom, 88 S.Ct. at 1485-86 . Double jeopar *746 dy protections likewise did not attach to this proceeding. See Dixon, 113 S.Ct. at 2856 , 125 L.Ed.2d at 568 (Scalia, J.) (in “criminal contempt” proceedings double jeopardy protections attach in the same manner that right to jury trial attaches).
IY.
A majority of the justices in Dixon also agreed to overrule Grady v. Corbin, 495 U.S. 508 , 110 S.Ct. 2084 , 109 L.Ed.2d 548 (1990). See Dixon, 113 S.Ct. at 2860 , 125 L.Ed.2d at 573 (Scalia, J., joined by Kennedy, J.), and at 2868, 125 L.Ed.2d at 583 (Rehnquist, C.J., concurring in part and dissenting in part, joined by O’Connor and Thomas, JJ.). In overruling Grady , a majority of the justices in Dixon decided the Blockburger 7 “same-elements” test is the sole test for determining “sameness” of offenses in “successive prosecution” eases when the same conduct or act violates two separate statutes. See Dixon, 113 S.Ct. at 2856, 2860 , 125 L.Ed.2d at 568, 573 (Scalia, J., joined by Kennedy, J.), and at 2865, 125 L.Ed.2d at 579 (Rehnquist, C.J., concurring in part and dissenting in part, joined by O’Connor and Thomas, JJ.).
Justice Scalia’s lead opinion applied the Blockburger “same elements” test by comparing the “elements” of contempt and the terms of the court orders in the contempt proceedings with the elements of the criminal statutes in the subsequent criminal prosecutions. See Dixon, 113 S.Ct. at 2856-59 , 125 L.Ed.2d at 568-72 (Scalia, J.). Under this application of the Blockburger “same-elements” test, Justice Scalia’s lead opinion decided Dixon’s subsequent prosecution and Count I of Foster’s subsequent prosecution were jeopardy-barred because the court orders “incorporated the entire governing criminal code” making the “underlying substantive criminal offense” a “species of lesser-ineluded offense” of the court orders. See Dixon, 113 S.Ct. at 2856-57 , 125 L.Ed.2d at 569 (Scalia, J.) (analysis for Dixon’s subsequent prosecution), and at 2857-58, 125 L.Ed.2d at 570 (Scalia, J.) (analysis for Dixon’s subsequent prosecution applies to Count I of Foster’s subsequent prosecution). Justice Scalia’s lead opinion decided Counts IIV of Foster’s subsequent prosecution were not jeopardy-barred under this application of the Blockburger test. See Dixon, 113 S.Ct. at 2858-59 , 125 L.Ed.2d at 571-72 (Scalia, J.).
Justice Rehnquist’s opinion claimed, among other things, that this non-traditional application of the Blockburger “same-elements” test bore a “striking resemblance to that found in Grady ” because it focused “on the facts needed to show a violation of the specific court orders involved in [the] case, and not on the generic elements of the crime of contempt of court.” See Dixon, 113 S.Ct. at 2865-67 , 125 L.Ed.2d at 579-81 (Rehnquist, C.J., concurring in part and dissenting in part). Justice Rehnquist’s opinion claimed a traditional application of the Blockburger “same-elements” test focuses on the “generic” or “statutory elements” of the crimes charged. See id. Justice Rehnquist’s opinion claimed this traditional application of the Blockburger test did not bar any of the subsequent criminal prosecutions because “the elements of the governing contempt provision ” were “entirely different from the elements of the substantive crimes.” See Dixon, 113 S.Ct. at 2865-67 , 125 L.Ed.2d at 579-81 (Rehnquist, C.J., concurring in part and dissenting in part) (emphasis in original). 8
*747 Justice Rehnquist’s position that none of the subsequent criminal prosecutions were jeopardy-barred obviously did not receive a majority of the votes although Justice Souter’s opinion, which claimed double jeopardy principles barred all of the subsequent prosecutions, agreed with Justice Rehnquist’s opinion on how to apply Blockburger. See Dixon, 113 S.Ct. at 2881-83 , 125 L.Ed.2d at 599-601 (Souter, J., concurring in the judgment in part and dissenting in part) (the Blockburger test emphasizes the elements of the two crimes which involve only a question of statutory construction). But, contrary to the positions taken in Justice Rehnquist’s and Justice Scalia’s opinions, Justice Souter’s opinion claimed Blockburger “is not the only standard for determining whether successive prosecutions impermissibly involve the same offense.” Dixon, 113 S.Ct. at 2883-84 , 125 L.Ed.2d at 601-02 (Souter, J., concurring in the judgment in part and dissenting in part). 9
Therefore, it appears at least five justices in Dixon also agreed to overrule Grady and to make the Blockburger “same-elements” test the only test for determining “sameness” of offenses in “successive prosecution” cases when the same conduct violates two separate statutory provisions. See Dixon, 113 S.Ct. at 2855-56 , 125 L.Ed.2d at 567-68 (Scalia, J., joined by Kennedy, J.), and at 2865-66, 125 L.Ed.2d at 579-80 (Rehnquist, C.J., concurring in part and dissenting in part, joined by O’Connor and Thomas, JJ.). It also appears at least five justices in Dixon agreed that Blockburger should be applied the way Justice Rehnquist’s opinion says it should be applied by focusing on the “generic” or “statutory elements” of the crimes charged and that this application of Blockburger barred none of the subsequent prosecutions in Dixon. See Dixon, 113 S.Ct. at 2865 , 125 L.Ed.2d at 579 (Rehnquist, C.J., concurring in part and dissenting in part, joined by O’Connor and Thomas, JJ.) (Blockburger focuses on “statutory elements” of the crimes charged), and at 2881-82, 125 L.Ed.2d at 599 (Souter, J., concurring in the judgment in part and dissenting in part, joined by Stevens, J.) (Blockburger “emphasizes the elements of the two crimes”).
However, Justice Scalia’s opinion is the “holding of the court” since it contains the narrowest grounds that explains or supports the Court’s judgment in Dixon. See Nichols, 114 S.Ct. at 1926 (Scalia, J.). 10 Under Justice Scalia’s opinion and assuming the contempt proceeding in applicant’s civil divorce case is a “criminal contempt prosecution,” 11 if applicant’s criminal prosecution for interference with child custody is jeopardy-barred, it has to be because the “underlying substantive criminal offense [of interference with child custody] is a species of lesser-ineluded offense” of the terms of the court’s order in the civil divorce case. See Dixon, 113 S.Ct. at 2856-57 , 125 L.Ed.2d at 569 (Scalia, J.). In other words, the issue is whether the court order in the civil divorce case incorporated the entire criminal offense of interference with child custody. See id.
The majority opinion in this case apparently agrees that Justice Scalia’s opinion contains the “holding of the court.” The majority opinion decides applicant’s criminal prosecution for interference with child custody is jeopardy-barred under Justice Scalia’s analysis because this criminal offense incorporates the terms of the civil court’s custody order making it a “lesser included offense” of the criminal offense of interference with child custody. See Ex parte Rhodes, 974 S.W.2d 735, 741 (Tex.Cr.App. delivered this date) (under Justice Scalia’s analysis, terms of court’s order is “lesser included offense” of the penal code provision).
In other words, the majority opinion decides the criminal offense of interference with child custody incorporates the terms of the court order in the civil divorce case. See id. This is just the opposite of the analysis *748 in Justice Scalia’s opinion which held Dixon’s subsequent prosecution and Count I of Foster’s subsequent prosecution were jeopardy-barred because the criminal offenses in those prosecutions were a “species of lesser-included offense” of the court orders. See Dixon, 113 S.Ct. at 2856-57 , 125 L.Ed.2d at 569, 570 (Scalia, J.) (court orders incorporated entire governing criminal code).
Under Justice Scalia’s analysis and assuming applicant’s contempt proceeding in the civil divorce ease is a “criminal contempt prosecution,” 12 applicant’s criminal prosecution for interference with child custody is not jeopardy-barred. The terms of the court order required the child to reside in Harris County and enjoined applicant from chánging the child’s county of residence without prior court approval. The elements of the offense of interference with child custody are (1) taking or retaining a child younger than 18 years (2) when the defendant knows that his taking or retention violates the express terms of a judgment or order of a court disposing of the child’s custody. See Section 25.03.
Applicant’s “criminal contempt prosecution” required a change of the child’s county of residence without prior court approval which conviction under Section 25.03 did not, and conviction under Section 25.03 requires taking or retaining the child which “conviction” of the contempt (for violating the order not to change the child’s county of residence without prior court approval) did not. Compare Dixon, 113 S.Ct. at 2859 , 125 L.Ed.2d at 572 (Scalia, J.). In other words, the terms of the court order did not incorporate “the entire governing criminal code” making the “underlying substantive criminal offense” a “species of lesser-included offense’-’ of the terms of the court order. See Dixon, 113 S.Ct. at 2856-57 , 125 L.Ed.2d at 569 (Scalia, J.). Therefore, under Justice Scalia’s analysis, applicant’s criminal prosecution for interference with child custody is not jeopardy-barred. 13
V.
Notwithstanding the foregoing and assuming applicant’s contempt proceeding in the civil divorce case and his subsequent criminal prosecution for interference with child custody involve the “same offense” under the Blockburger test, I would not characterize this case as a “successive prosecution” case. See Dixon, 113 S.Ct. at 2856 , 125 L.Ed.2d at 568 (Scalia, J.) (double jeopardy protection applies both to “successive punishments” and to “successive prosecutions” for the “same criminal offense”). Instead, I would characterize this case as a “successive punishments” case. See id. 14 The double jeopardy analysis changes depending on whether the ease is characterized as a “successive prosecution” case or as a “successive punishments” case.
If this is a “successive prosecution” case and applicant’s contempt proceeding and his *749 criminal prosecution involve the “same offense” under the Blockburger test, then double jeopardy bars applicant’s criminal prosecution. See Dixon, 113 S.Ct. at 2855 , 125 L.Ed.2d at 567 (Scalia, J.) (double jeopardy protects against “successive prosecutions” for the “same criminal offense”). However, if this is a “successive punishments” case and applicant’s contempt proceeding and his criminal prosecution involve the “same offense” under the Blockburger test, then the issue becomes whether applicant’s $100 fine in the contempt proceeding is a “criminal punishment.” See Dixon, 113 S.Ct. at 2855 , 125 L.Ed.2d at 567 (Scalia, J.) (double jeopardy applies to “successive punishments” for the “same criminal offense”); see also Hudson v. United States, - U.S. -, 118 S.Ct. 488 , 139 L.Ed.2d 450 (1997). If this fine is not a “criminal punishment,” then double jeopardy does not bar applicant’s criminal prosecution. See id.
I would hold this is a “successive punishments” case. See Dixon, 113 S.Ct. at 2855 , 125 L.Ed.2d at 567 (Scalia, J.). A contempt proceeding in a civil divorce case between two private parties is not a “criminal prosecution” in any sense of the word. The Court in Dixon seemed uncritically to treat both Dixon’s and Foster’s cases as “successive prosecution” cases. See also Footnote Five of this Opinion, supra, 15
Since this is a “successive punishments” case, the issue is whether applicant’s $100 fine in the contempt proceeding is a “criminal punishment.” See Hudson, 118 S.Ct. at 493 (in “successive punishments” cases, the Double Jeopardy Clause protects only against the imposition of “multiple criminal punishments” for the “same offense”). It is not dispositive for double jeopardy purposes that under our state law 16 contempt proceedings in cases like this are commonly labeled as “criminal contempt” and as “punishment” for violating a court’s order. See Hudson, 118 S.Ct. at 493 (Double Jeopardy Clause does not prohibit imposition of additional sanction that could in “common parlance” be labeled as “punishment”); Hicks v. Feiock, 485 U.S. 624, 108 S.Ct. 1423, 1429 , 99 L.Ed.2d 721 (1988) (labels “criminal” or “civil” are not dispositive); Gompers, 31 S.Ct. at 498 (contempts are neither wholly civil nor altogether criminal and it is not the fact of punishment, but rather its character and purpose, that often serve to distinguish between “civil” and “criminal” contempt).
Criminal contempt under our state law in cases like this is primarily used to enforce a trial courts orders. The threat of criminal contempt under our state law encourages compliance with the trial court’s orders. And, this is the intent expressed in relevant provisions of Texas’ Family Code. See, e.g., Texas Family Code, Section 157.001(b) (court may enforce by contempt a final order for possession of and access to a child); Tex.Fam.Cd., Section 157.002(d) (movant not required to plead that underlying order is enforceable by contempt to obtain other appropriate enforcement remedies); see also Hudson, 118 S.Ct. at 493 (whether a particular punishment is criminal or civil is initially a matter of statutory construction). Moreover, a $100 fine cannot be considered “criminal punishment” either “in purpose or effect.” See Hudson, 118 S.Ct. at 493 .
Based on the Hudson factors, I would hold applicant’s $100 fine in the contempt proceeding is not a “criminal punishment.” See Hudson, 118 S.Ct. at 493 . Therefore, applicant’s criminal prosecution is not jeopardy-barred. This gives effect to and in no way ignores the majority holding in Dixon “that the protection of the Double Jeopardy Clause” attaches “in nonsummary criminal contempt prosecutions just as they do in other criminal prosecutions.” See Dixon, 113 S.Ct. at 2856 , 125 L.Ed.2d at 568 (Scalia, J.).
Finally, holding applicant’s criminal prosecution is not jeopardy-barred does not frus *750 trate the core purposes of the Double Jeopardy Clause. The Government has not made “repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity.” Dixon, 113 S.Ct. at 2883 , 125 L.Ed.2d at 601 (Souter, J., concurring in the judgment in part and dissenting in part). And, the Government has not had the opportunity “to rehearse its prosecution, honing its trial strategies and perfecting its evidence through successive attempts at conviction.” Id.
I respectfully dissent.
MANSFIELD, J., joins this dissent.
. It is undisputed applicant’s criminal prosecution is based on the “same conduct” that was the subject of the prior contempt proceeding in the civil case.
. This test is more easily stated than applied. See Nichols, 114 S.Ct. at 1926 .
. The District of Columbia Court of Appeals consolidated Dixon’s and Foster's cases. See Dixon, 113 S.Ct. at 2854-55 , 125 L.Ed.2d at 566 . Dixon’s subsequent prosecution was based on the same conduct that was the subject of a prior contempt proceeding. See Dixon, 113 S.Ct. at 2853-54 , 125 L.Ed.2d at 565 (Sealia, J.). All five counts in Foster's subsequent prosecution were based on the same conduct that was the subject of a prior contempt proceeding. See Dixon, 113 S.Ct. at 2853-55 , 125 L.Ed.2d at 565-66 (Sealia, J.). That Foster was not found in contempt for some of this conduct in his prior contempt proceeding is irrelevant to the double jeopardy analysis in this "successive prosecution” case. See Dixon, 113 S.Ct. at 2853-55, 2857-59 , 125 L.Ed.2d at 565-66, 570-71 (Sealia,-J.). What is relevant is that Foster was “prosecuted” for this conduct in the prior contempt proceeding. See id.
. See generally Gompers v. Bucks Stove & Range Co., 221 U.S. 418 , 31 S.Ct. 492, 498-99 , 55 L.Ed. 797 (1911) (discussing differences between "civil” and "criminal” contempt).
. Dixon’s case was a "criminal contempt prosecution” since he was found "guilty of criminal contempt" in a criminal proceeding to which the Government was a party pursuant to a statute authorizing a criminal "prosecution for contempt of court.” See Dixon, 113 S.Ct. at 2853-54 , 125 L.Ed.2d at 565 (Scalia, J.). The same cannot be said about Foster's case. See Dixon, 113 S.Ct. at 2853-54, 2857-58 , 125 L.Ed.2d at 565, 570 (Scalia, J.). Foster’s case involved contempt proceedings in a civil case. See id. Although the Court characterized Foster’s route to the Court as similar to Dixon’s route, it would appear the roads they traveled were quite different. But see Dixon, 113 S.Ct. at 2853-54 , 125 L.Ed.2d at 565 (Scalia, J.). Dixon’s case was a criminal case. Foster’s case was a civil case.
. This holding in Dixon does not necessarily follow from the cases cited. See Dixon, 113 S.Ct. at 2856 , 125 L.Ed.2d at 568 (Scalia, J.). Although "criminal contempt” proceedings in civil cases arguably are close enough to "criminal prosecutions” for purposes of presumption of innocence, proof beyond a reasonable doubt, right to jury trial, etc., it does not necessarily follow they are close enough to criminal prosecutions for purposes of the Double Jeopardy Clause especially where the Government is not a party to these proceedings. See Dixon, 113 S.Ct. at 2883 , 125 L.Ed.2d at 601 (Souter, J., concurring in the judgment in part and dissenting in part) (setting out core purposes of Double Jeopardy Clause).
. See Blockburger v. United States, 284 U.S. 299 , 52 S.Ct. 180, 182 , 76 L.Ed. 306 (1932) (when the “same act or transaction” violates "two distinct statutory provisions,” the applicable test to determine whether there are two offenses or only one is whether "each provision requires proof of an additional fact which the other does not”). (Emphasis Supplied).
. Dixon, 113 S.Ct. at 2866 , 125 L.Ed.2d at 580-81 (Rehnquist, CJ., concurring in part and dissenting in part):
"Applying [the traditional Blockburger “same-elements” test] to the offenses at bar, it is clear that the elements of the governing contempt provision are entirely different from the elements of the substantive crimes. Contempt of court comprises two elements: (i) a court order made known to the defendant, followed by (ii) willful violation of that order. (Citations Omitted). Neither of those elements is necessarily satisfied by proof that a defendant has committed the substantive offenses of assault or drug distribution. Likewise, no element of either of those substantive offenses is necessarily satisfied by proof that a defendant has been found guilty of contempt of court.” (Emphasis in Original).
. Therefore, it appears Justice Souter agreed that none of the subsequent criminal prosecutions were jeopardy-barred under a traditional application of the Blockburger "same-elements” test.
. Judge Keller’s concurring opinion relies on Justice Rehnquist's opinion to decide applicant’s criminal prosecution for interference with child custody is jeopardy-barred. However, Justice Rehnquist’s opinion does not contain the "holding of the court” under the test set out in Nichols .
. See Section III, supra.
. See Section III, supra.
. In support of its holding the court order in the civil divorce case is a "lesser included offense” of the penal code provision defining the elements of interference with child custody, the majority opinion states "if one changes a child’s county of residence, one always takes or retains the child.” However, this misapplies Justice Scalia’s Block-burger analysis and it does not correctly state the "lesser included offense” test under our state law. See Article 37.09, V.A.C.C.P. (defining lesser included offenses); Hopkins v. Reeves, - U.S. -, 118 S.Ct. 1895 , 141 L.Ed.2d 76 (1998) (federal constitution does not require state trial courts to instruct jury in a capital case on offenses that, under state law, are not considered lesser included offenses with respect to the charged crime).
Proving a change of the child’s county of residence without prior court approval is not .required to establish the first element of interference with child custody. See Article 37.09(1); Hopkins , - U.S. at -, 118 S.Ct. 1895 (federal courts defer to state law definitions of lesser included offenses). Therefore, the penal code provision defining the elements of interference with child custody does not incorporate the court order in the civil divorce case* In other words, the court order in the civil divorce case is not a "lesser included offense”, of the penal code provision defining the elements of interference with child custody. See Article 37.09(1).
. This also is sometimes referred to as "multiple punishments.” See Dixon, 113 S.Ct. at 2856 , 125 L.Ed.2d at 568 (Scalia, J.) (in both the "multiple punishment” and “multiple prosecution” contexts, where the two offenses for which the defendant is punished or tried cannot survive the Blockburger "same-elements” test, the double jeopardy bar applies).
. Dixon’s case arguably was a "successive prosecution” case since he was found "guilty of criminal contempt” in a proceeding to which the Government was a party pursuant to a statute authorizing a "prosecution for contempt of court.” See Dixon, 113 S.Ct. at 2853-54 , 125 L.Ed.2d at 565 (Scalia, J.). The same cannot be said about Foster's case. See Dixon, 113 S.Ct. at 2853-54, 2857-58 , 125 L.Ed.2d at 565, 570 (Scalia, J.).
. See Ex parte Chambers, 898 S.W.2d at 259-60.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9769499. Public record. Not legal advice.