EX PARTE ESTEVEZ v. << (2025)

OPINION

Appellant is charged with driving while intoxicated (“DWI”). She seeks habeas relief to avoid prosecution for that charge. She says she was previously prosecuted and punished for contempt for having committed that DWI and is in jeopardy of successive prosecution and multiple punishments for the same offense. Her successive prosecution claim is without merit because the contempt order was void for lack of notice and was withdrawn by the trial court. But her multiple punishments claim is meritorious, so we reverse the judgments of the lower courts.

I. Background

In November 2021, Appellant was charged with misdemeanor DWI, and her bond was conditioned on, among other things, her committing no crime and engaging in no conduct that would cause her arrest. In 2022 while that first DWI was pending, she was charged intermittently with one felony and five more misdemeanors, including, finally, a second DWI. Here is the timeline of her 2022 charges:

On December 9, 2022, the trial court ordered her to show cause “why she should not be held in contempt and punished for failing to abide by the ORDERS of this Court, to wit: DEFENDANT COMMITTED A CRIME AND/OR ENGAGED IN CONDUCT THAT RESULTED IN HIS [sic] ARREST.” The show-cause order did not specify either the crime or the conduct.

At the show-cause hearing four days later, Appellant objected that the show-cause order was defective for failing to give her adequate notice. She withdrew her objection when the judge threatened to leave her in jail for another three days to give her notice. The State admitted two exhibits into evidence: (1) the order for pretrial supervision and bond conditions from the initial DWI charge and (2) the charging instrument from the second DWI. The prosecutor explained that State's Exhibit 2 was “the complaint for a driving while intoxicated that occurred on December 5, 2022, which states that the defendant Estevez is being charged with driving while intoxicated in the State of Texas, which is a criminal offense.” The prosecutor argued that Appellant “clearly violated her bond conditions” that she had signed in December 2021 because “she picked up the new law violation of the driving while intoxicated which occurred back on – doublechecking 12/05/2022.” The trial judge asked, “[H]ow many cases does she currently have open in this court?” And the State recited the other charges pending against Appellant:

She has possession of a controlled substance, which was picked up also on 12/5/22; the DWI, I've already mentioned, which has the same offense date; a criminal mischief, which has an offense date of 11/16/22.

She has a [sic] unlawful carrying of a weapon, which occurred on 5/31/2022, which is a felony case–so that one is not in this court.

She has a theft in the aggregate which occurred on 5/17/2022, and then the DWI which she was given the original bond conditions from 11/25/21.

The prosecutor said she had nothing further, and the trial court asked the defense for a response. The defense attorney said that first “there was deficient notice in this case” and quoted the show cause order: “Defendant committed a crime and/or engaged in conduct that resulted in his arrest.” He started to cite a case, and the court interrupted to ask if that was his only legal argument. He replied that the second argument “would be that we would ask for leniency and specifically ask the Court not to go over the maximum allowable judgment of Harris County jail of three days pursuant to TCCP 7.18, your Honor.” After some discussion about the applicability of that statute, the trial court said:

So, what we'll do is we'll just leave her in custody and give you a notice that states all of her law violations that she received and go from there ․ I mean, it's more time your client sits in jail. That's longer than what you say the penalty is. I want to make sure you feel that you have the right notice. So do you want to go forward on the notice or do you want to withdraw the notice?

Defense counsel said he would withdraw the notice claim and ask “for leniency and not exceeding the statutory maximum of three days and/or a fine of $100, your Honor.” After discussion about the court's authority to probate the three-day sentence, the difference “between orders and conditions[,]” and a case cited by the defense, the court announced its decision: it found Appellant guilty of contempt, saying,

So, what I'll do is I'll find her guilty of violating the charges the State has brought forward under the Show Cause, sentence her to three days and send her to WHO-A as part of her probation.

I'll probate her 3-day sentence. And we'll probate it for nine months, whenever she finishes the program, and I'll terminate the probation.

The defense attorney asked if she could simply serve the three days and forgo the probation, but the court demurred. “Counsel, are you – I mean, she picks up a new case every other week. Do you want her to like eventually go to prison for life? Or do you want this – what is your goal?” The defense attorney answered in the negative, explaining that “she's already going there pursuant to the felony court.”

The written judgment corresponded to the oral pronouncement: Appellant was found in contempt for unspecified disobedience of a court order, sentenced to three days in jail probated for nine months, and committed to a residential treatment facility, Women Helping Ourselves—Atascocita (“WHO-A”).

Thirty days later, Appellant filed an application for writ of habeas corpus seeking dismissal of the second DWI charge on grounds that she was already prosecuted and punished for it when she was held in contempt. On February 6, 2023, the trial court dismissed the show cause order and withdrew its contempt judgment, citing lack of notice.

On March 13, 2023, the trial court held a hearing on Appellant's application for writ of habeas corpus. The trial court denied Appellant's writ application, and she appealed.

II. Court of Appeals

The court of appeals affirmed the trial court's judgment. In re Estevez, No. 01-23-00216-CR, 2024 Tex. App. LEXIS 4374 at *17 (Tex. App. June 25, 2024). It determined that the contempt judgment was void, and the trial court had the power and duty to vacate it even though its plenary power had expired. Id. at *16-17. Because the contempt order was vacated, the court of appeals concluded that it no longer existed and, without a valid judgment of conviction having been entered for the same offense, Appellant could not show that she had been placed in jeopardy. Id. at *11-12.

III. Criminal Contempt and Double Jeopardy

Criminal contempt enforced in non-summary fashion “is ‘a crime in the ordinary sense.’ ” United States v. Dixon, 509 U.S. 688, 696, 113 S.Ct. 2849, 125 L.Ed.2d 556 (1993) (quoting Bloom v. Illinois, 391 U.S. 194, 201 (1968)). Defendants charged with contempt enjoy most of the same constitutional protections applicable to other criminal defendants—notice of charges, the presumption of innocence, burden of proof beyond a reasonable doubt, privilege against self-incrimination, and a bar against double jeopardy. Id. The right to a jury trial, however, is inapplicable to “petty” contempt prosecutions. Bloom, 391 U.S. at 210, 88 S.Ct. 1477.

The Double Jeopardy Clause says, “[N]or shall any person be subject for the same offense to be twice put in jeopardy of life or limb.” U.S. Const. amend. V. It prevents “both successive punishment and successive prosecution” for the same offense. Witte v. United States, 515 U.S. 389, 395-96, 115 S.Ct. 2199, 132 L.Ed.2d 351 (1995) (citing Dixon, 509 U.S. at 696, 113 S.Ct. 2849). Two offenses are the same unless the provisions defining them each require “proof of a fact which the other does not.” Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 76 L.Ed. 306 (1932). The double-jeopardy bar may apply when two offenses cannot pass the same-elements test. Dixon, 509 U.S. at 696, 113 S.Ct. 2849. The same-elements test asks whether each offense depends on a unique element; in other words, “whether each offense contains an element not contained in the other; if not, they are the ‘same offense’ and double jeopardy bars additional punishment and successive prosecution.” Id.

The same-elements test is a method of statutory construction; its purpose is to give effect to legislative intent. Whalen v. United States, 445 U.S. 684, 691-92, 100 S.Ct. 1432, 63 L.Ed.2d 715 (1980). It will not foreclose multiple punishments if the statutes are clear that the Legislature intended to allow multiple punishments for the same offense. Missouri v. Hunter, 459 U.S. 359, 368-69, 103 S.Ct. 673, 74 L.Ed.2d 535 (1983). Dixon’s two consolidated cases illustrate Blockburger’s same-elements test as applied to contempt for violation of bond conditions; Dixon enjoyed protection from further prosecution, but Foster did not.

Dixon was on bond for murder, and his bond was conditioned on his committing no crime, but while on bond he was charged with possession of cocaine. Dixon, 509 U.S. at 691, 113 S.Ct. 2849. After a show cause order and a hearing in which his cocaine possession was proven, Dixon was held in contempt and sentenced to 180 days in jail. Id. at 692, 113 S.Ct. 2849. The trial court later granted his motion to dismiss the cocaine indictment as barred by double jeopardy. Id. The Supreme Court upheld the dismissal because “the ‘crime’ of violating a condition of release cannot be abstracted from the ‘element’ of the violated condition.” Id. at 698, 113 S.Ct. 2849. He violated an order that “incorporated the entire governing criminal code[.]” Id. The underlying offense of cocaine possession was “a species of lesser-included offense.” Id. (quoting Illinois v. Vitale, 447 U.S. 410, 420, 100 S.Ct. 2260, 65 L.Ed.2d 228 (1980)). “Because Dixon's drug offense did not include any element not contained in his previous contempt offense, his subsequent prosecution violates the Double Jeopardy Clause.” Id. at 700, 113 S.Ct. 2849.

By contrast, in the companion case, Foster was under a civil protection order (“CPO”) that prohibited him from assaulting his wife. Id. at 692, 113 S.Ct. 2849. He was held in contempt for violating the CPO by committing simple assault, but that did not bar his subsequent prosecution for assault with intent to kill because the contempt judgment and the assault indictment had unique elements. Id. at 701, 113 S.Ct. 2849. Specifically, the contempt judgment depended on evidence that Foster knew of the CPO and committed simple assault, and the assault indictment alleged intent to kill. Id. at 701-02, 113 S.Ct. 2849. Because both prosecutions depended on at least one element that the other did not, they were different offenses, and prosecuting Foster for both did not offend the bar against double jeopardy. Id. at 702, 113 S.Ct. 2849.

IV. Analysis

The Legislature wrote Code of Criminal Procedure Chapter 17 to deal with bail bond conditions in ways that are distinct from contempt. See, e.g., Tex. Code Crim. Proc. art. 17.40(b) (allowing for revocation of bail bond if defendant violated a condition); art. 17.09 § 3 (allowing judge to reissue bail bond if it is defective or insufficient). Chapter 17 says nothing about punishment via contempt for bond-condition violations. In contrast, the Legislature has specified that the violation of a peace bond may be punished in multiple ways—forfeiture of the bond, fine, imprisonment for contempt, or all three. Tex. Code Crim. P. art. 7.18. Its failure to spell out those options under Chapter 17 signifies that such bonds are exclusively enforced by the remedies provided in that chapter and not by contempt.

A. No Notice, Void Judgment, No Bar to Successive Prosecution

The show cause order here gave Appellant no notice of her offending conduct. It did not specify the crime she committed or the conduct she engaged in that might have violated an order.

But the prosecution filled in those gaps when it offered into evidence the second DWI's charging instrument: it was prosecuting Appellant for contempt of court for having committed a second DWI. The prosecutor said Appellant “clearly violated her bond conditions” when “she picked up the new law violation of the driving while intoxicated” on December 5, 2022.

The trial court confirmed as much in two instances. First, it offered to leave Appellant in jail and “give you a notice that states all of her law violations.” Second, it said that it was holding her in contempt for “violating the charges the State has brought forward under the show cause.” These comments mark a distinction between “all of her law violations” and the only one “brought forward” by the State—the second DWI. So, while the show cause order failed to specify any conduct that violated a bond condition, the record shows that Appellant was prosecuted and punished via contempt for the second DWI.

Still, because the show cause order did not state an offense, it was void for failing to provide Appellant with sufficient notice. The contempt judgment based on it was void, and a void judgment does not bar a successive prosecution. Hoang v. State, 872 S.W.2d 694, 698 (Tex. Crim. App. 1993). Therefore, Appellant's successive prosecution claim fails. But as discussed below, her multiple-punishments claim has merit.

B. Multiple Punishments

The Double Jeopardy Clause bars not only the imposition of multiple punishments for the same offense; it protects against the attempt to do so. Witte, 515 U.S. at 396, 115 S.Ct. 2199. Appellant was punished for the second DWI when the trial court held her in contempt and sentenced her to three days in jail for allegedly having committed it. As in the eponymous Dixon case, Appellant was held in contempt for violating a bond condition that prohibited committing a crime, and her “ ‘crime’ of violating a condition of release cannot be abstracted from the ‘element’ of the violated condition.” See Dixon, 509 U.S. at 698, 113 S.Ct. 2849. The DWI was a lesser-included offense. See id.; see also Aekins v. State, 447 S.W.3d 270, 274 (Tex. Crim. App. 2014) (noting that a multiple-punishment double jeopardy violation may occur when the same conduct is punished under both a greater and a lesser-included offense); Littrell v. State, 271 S.W.3d 273, 275-76 (Tex. Crim. App. 2008) (“In the multiple-punishments context, two offenses may be the same if one offense stands in relation to the other as a lesser-included offense”). Accordingly, any effort to punish her a second time for the second DWI is prohibited by the constitutional bar against double jeopardy.

V. Reply to Dissenting Opinions

Presiding judge Schenck's dissenting opinion argues that Appellant was not necessarily held in contempt for committing the second DWI, but the record shows otherwise. His opinion suggests that she could have been held in contempt for having been arrested, but the State did not rely merely on her arrest when it prosecuted her for contempt—it relied exclusively on her having been charged with DWI. Perversely, the dissent would deprive Appellant of protection against multiple punishments because she was also deprived of adequate notice and sentenced to jail on less than proof beyond a reasonable doubt, but that would only compound the trial court's errors.

Judge Finley's dissenting opinion rests on two faulty premises. The first is his assertion that jurisdiction may be waived. But jurisdiction is an absolute requirement and may not be waived. Marin v. State, 851 S.W.2d 275, 279 (Tex. Crim. App. 1993). Jurisdiction depends on a valid charging instrument. Garcia v. Dial, 596 S.W.2d 524, 527 (Tex. Crim. App. 1980). It is not conferred merely by the defendant's appearance in court. Id. The second faulty premise is the claim that Appellant's waiver of notice was freely made. Since it was produced by the trial court's threat to leave her in jail even longer if she insisted on notice, it was not a free choice but was a coerced one. Even the trial court finally recognized what the dissent still does not—that it never had the authority to jail Appellant on the defective show-cause order.

VI. Conclusion

Appellant was already punished for the December 5, 2022, DWI and is entitled to relief from further punishment for that offense. We reverse the judgment of the court of appeals and remand to the trial court for dismissal of the DWI charge in Cause No. 2435337.

OPINION

Appellant was charged with DWI and released by terms of a bond in which she agreed to engage in no conduct that would result in her arrest, nor commit any further crime of any kind. When the trial court determined that she had violated those conditions, Appellant was summoned and again released on bond with a probated sentence of three days in jail should she once again violate her conditions over the next nine months. The questions surrounding the procedure by which she suffered this “punishment” are not before us, as she has brought no appeal or other challenge to her probated three-day sentence. Instead, she brings this challenge seeking to completely bar the substantive prosecution for her second offense.

Whatever might be said of the fractured holding in United States v. Dixon, or our subsequent construction of it, I do not believe that Appellant has carried her burden of showing that the contempt proceeding resulted in an adjudication—at least in any sense captured by the Double Jeopardy Clause—of her second offense or a punishment for the same offense at issue in this proceeding. Because Appellant has not shown that the hearing in her first case necessarily reached and resolved the same merits questions presented in this proceeding (i.e., her guilt in this proceeding), she has not carried her burden under Blockburger v. United States. Because the majority holds otherwise, I dissent.

BACKGROUND

The majority opinion and Judge Finley's dissent describe the basic facts of the case well, so I will only briefly repeat those relevant to our analysis here. On December 3, 2021, Appellant was charged with DWI (the “First DWI”) and was released on personal bond with conditions, specifically, that she refrain from engaging in conduct which might result in her arrest, nor commit any other crimes. While she was released on bond for the First DWI, Appellant was arrested and charged with six additional offenses, including a second DWI (the “Second DWI”), which is before us today. On December 13, 2022, the trial court overseeing the original bond issued a show-cause order and held Appellant in contempt due to violation of her bond conditions by committing a crime and/or engaging in conduct that resulted in her arrest.

On January 12, 2023, Appellant filed a writ of habeas corpus seeking dismissal of the Second DWI, alleging she was already prosecuted and punished for that offense by virtue of the contempt judgment. The trial court thereafter vacated its December 2022 show-cause order and contempt judgment and denied Appellant's writ of habeas corpus. She appealed, and the First Court of Appeals held that the trial court's show-cause order did not sufficiently notify Appellant of when, how, and by what means she was guilty of contempt. Thus, it held the judgment of contempt void, and therefore Appellant was unable show she was put in jeopardy by that judgment. It noted that the trial court had the power and duty to vacate the void order, regardless of whether its plenary power had expired.

In the petition before us, Appellant argues the judgment of contempt barred her prosecution of the Second DWI.

DISCUSSION

The majority correctly notes that if “Appellant was punished for the second DWI when she was held in contempt, and if the Legislature did not intend to allow multiple punishments for DWI and violating a bond condition by committing DWI,” then a risk of double jeopardy violation could occur by permitting prosecution for the additional DWI to go forward. Maj. Op. at 6. Before reaching the admittedly difficult double jeopardy analysis arising from any claim of successive prosecution or multiple punishments, we must first assume that jeopardy attached in the first instance.¹ While I accept that jeopardy could attach under a reasonable construction of the trial court's intentions here, I would nevertheless conclude that no double jeopardy violation occurred in this instance because the criminal prosecution of the Second DWI relative to the contempt proceeding would not be barred under Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932).

The burden to prove a double jeopardy violation is on the defendant. Hill v. State, 90 S.W.3d 308, 313 (Tex. Crim. App. 2002). The Supreme Court in United States v. Dixon held that a subsequent prosecution was barred by double jeopardy where a contempt sanction had been imposed for violating an order through commission of an incorporated offense. United States v. Dixon, 509 U.S. 688, 698, 113 S.Ct. 2849, 125 L.Ed.2d 556 (1993). In Dixon, the Court reviewed the two consolidated cases of Dixon and Foster, who were both convicted of criminal contempt for violating conditions of release. In Dixon's case, the trial judge incorporated the prohibited statutory drug offense into the release order,² which the plurality held barred later prosecution of that same drug offense. Id. at 697–98, 113 S.Ct. 2849. In Foster's case, the plurality concluded, under the same rationale, that his subsequent prosecution for simple assault was barred because the contempt conviction was effectively a lesser included offense of the criminal code provision. Id. at 698, 113 S.Ct. 2849. The other charges he faced, however, were not jeopardy-barred because those offenses and the contempt conviction each contained separate elements that the other did not. Id. at 702, 113 S.Ct. 2849.

Even applying the Dixon plurality's rationale to this case, the facts are readily distinguishable. The Foster companion case is helpful in illustrating why. There, the Court noted that Foster's subsequent simple assault prosecution was barred because the prosecution necessarily had to prove simple assault as defined by the criminal code in order to secure the contempt conviction, whereas the contempt conviction did not require proof of any elements of the remaining offenses and accordingly were not jeopardy barred. Id. Likewise, in Dixon's controlled substance prosecution, the “court order incorporated the entire governing criminal code,” and thus the “ ‘crime’ of violating the condition of release could not be abstracted from the ‘element’ of the violated condition.” Id. at 698, 113 S.Ct. 2849. In this way, Dixon's subsequent prosecution was barred in full, and Foster's was not. This was essential, not coincidental to those results, as my predecessor observed in our later Rhodes decision. Ex parte Rhodes, 974 S.W.2d 735, 742 (Tex. Crim. App. 1998) (Keller, J., concurring).

Distinguishing Estevez's case from Dixon and Foster's circumstances, the contempt conviction in this case did not require the trial court to adjudicate the merits of the Second DWI. The state was not even obliged to prove beyond a reasonable doubt that Appellant committed the Second DWI as the basis for the contempt conviction. Cf. Dixon, 509 U.S. at 690 (contempt prosecution necessarily proved beyond a reasonable doubt offense that was the basis of subsequent prosecution); Rhodes, 974 S.W.2d at 741 (elements of contempt conviction constituted a lesser included offense of the penal code provision for the subsequent offense). In this respect, this case is more akin to Foster's. When he violated the court's conditions by engaging in assault, the trial court, by necessity, determined beyond reasonable doubt that he had subsequently done so. However, a host of remaining charges against Foster were not barred because each contained at least one element that was not necessarily resolved in the contempt proceeding. Dixon, 509 U.S. at 702-03, 113 S.Ct. 2849.

The state in this case only had to show actions by Appellant that gave rise to her being arrested for any reason while she remained free on bond. It is important to note that the determination of the presence or absence of probable cause to arrest is distinct from guilt or innocence, and a determination as to the absence of probable cause producing the arrest is not preclusive of a subsequent prosecution. Neaves v. State, 767 S.W. 2d 784, 787 (1989) (finding of no probable cause does not bar subsequent prosecution on the merits).

Appellant was simply subject to conditions for her release on personal bond for the First DWI that she “shall commit no crime and shall not engage in any conduct that could result in his/her arrest.” (emphasis added). Notwithstanding any risks of an adjudication of guilt for any further prohibited “crime” or “conduct,” Appellant was ordered to comply with both of these conditions to remain free on bond pending resolution of the First DWI. Indeed, she signed and acknowledged the court's order that “failure to comply with these conditions may result” in “a separate action against [her] for contempt of court.”

The contempt judgment was not necessarily imposed for violating the trial court's order through the commission of any particular prohibited offense, i.e., the Second DWI. That specific offense was not incorporated in the order necessitating proof beyond a reasonable doubt of its commission. Neither was the court compelled even to reach those merits. Engaging in any action giving rise to probable cause was itself sufficient to constitute a violation of the bond conditions. The contempt judgment was thus anchored to (and subject to independent enforcement from) any arrest or behavior likely to lead to it, including but not limited to an additional DWI charge, forgery, misprision or any other tomfoolery.

To the extent the majority implies that proof offered by the prosecution of the Second DWI as evidence to sustain the contempt conviction equates to an element of the contempt conviction to support a jeopardy bar, that rationale relies on expired precedent in Grady and would still fail under Blockburger and Dixon. See Dixon, 509 U.S. at 703–04, 113 S.Ct. 2849.

Put simply, the contempt conviction and punishment (such as it was) required proof only that Appellant either committed some crime or engaged in conduct that resulted in her arrest.³ By contrast, the Second DWI proceeding will require proof under Texas Penal Code § 49.04 required that there be intoxication and operation of a motor vehicle, and the contempt conviction did not require either of those things. See Blockburger, 284 U.S. at 304, 52 S.Ct. 180; Dixon, 509 U.S. at 702, 113 S.Ct. 2849.

The United States Supreme Court has regarded as settled law courts’ inherent power to punish for contempt, essential to the administration of justice. Young v. U.S. ex rel. Vuitton et Fils S.A., 481 U.S. 787, 795, 107 S.Ct. 2124, 95 L.Ed.2d 740 (1987); Michaelson v. United States ex rel. Chicago, St. P., M., & O.R. Co., 266 U.S. 42, 65–66, 45 S.Ct. 18, 69 L.Ed. 162 (1924). “The purpose of contempt is not to punish an offense against the community at large but rather to punish the specific offense of disobeying a court order.” United States v. Dixon, 509 U.S. 688, 741–42, 113 S.Ct. 2849, 125 L.Ed.2d 556 (1993) (Blackmun, J., concurring). Barring a necessary, complete overlap between the exercise of that power and a subsequent prosecution, Blockburger would fail.

Thus, I cannot agree with the majority that Appellant's judgment of contempt for violating the trial court's order violated double jeopardy so as to bar subsequent prosecution of the Second DWI.

I dissent in the Court's judgment.

DISSENTING OPINION

The Court today says that Appellant's “successive prosecution claim is without merit because the contempt order was void for lack of notice and was withdrawn by the trial court.” Maj. Op. at 1. But that is incorrect. The trial court had subject-matter jurisdiction over Appellant's underlying prosecution. That subject-matter jurisdiction extended to the ensuing contempt proceedings because the trial court had discretion over conduct connected to the underlying criminal prosecution.

I. Analysis

What the trial court initially lacked was personal jurisdiction over Appellant because of defects in the show cause order. In Nix v. State, we recognized:

A judgment of conviction for a crime is void when (1) the document purporting to be a charging instrument (i.e. indictment, information, or complaint) does not satisfy the constitutional requisites of a charging instrument, thus the trial court has no jurisdiction over the defendant, (2) the trial court lacks subject matter jurisdiction over the offense charged, such as when a misdemeanor involving official misconduct is tried in a county court at law.

65 S.W.3d 664, 668 (Tex. Crim. App. 2001) (internal citations omitted). Notice two things: First, a defect in the charging instrument relates to the “trial court” having “no jurisdiction over the defendant,” i.e., there is no personal jurisdiction. Id. Second, a judgment is void when the trial court lacks subject-matter jurisdiction “over the offense charged,” for example, when a felony is prosecuted in a misdemeanor court. Id.

Here, the trial court initially lacked personal jurisdiction over Appellant in the contempt hearing due to insufficient notice. The insufficient notice rendered the charging instrument constitutionally defective. However, unlike subject-matter jurisdiction,¹ defects that impede personal jurisdiction can be waived. Tex. Code Crim. Proc. art. 1.14(a) (West 2022) (“The defendant in a criminal prosecution for any offense may waive any rights secured [to] him by law ․”); id. art. 1.14(b) (West 2022) (“If the defendant does not object to a defect, error, or irregularity of form or substance in an indictment or information before the date on which the trial on the merits commences, he waives and forfeits the right to object to the defect, error, or irregularity and he may not raise the objection on appeal or in any other postconviction proceeding.”). And Appellant waived her personal jurisdiction objection, as shown by the hearing transcript:

Trial Court: So, do you want to go forward on the notice or you want to withdraw the notice?

Trial Counsel: I can withdraw the notice claim and we can go forward with asking for leniency and not exceeding the statutory maximum of three days and/or a fine of $100, your Honor.

Appellant withdrew her notice-based objection and consented to proceed with the contempt hearing, thereby affirmatively and orally waiving the basis of her personal jurisdiction objection. Because defective notice was the sole issue with the contempt order, and Appellant waived that defect, Appellant plainly, freely, and intelligently waived the trial court's initial lack of personal jurisdiction on the record. Therefore, the judgment of contempt was not void, as the trial court had both personal jurisdiction over Appellant and subject-matter jurisdiction over Appellant's contempt case.

Since Appellant's contempt judgment was not void, the question remains whether her successive prosecution claim is barred under double jeopardy principles. The Double Jeopardy Clause provides that no “person [shall] be subject for the same offence to be twice put in jeopardy of life or limb.” U.S. Const. amend. V. “This protection applies both to successive punishments and to successive prosecutions for the same criminal offense.” United States v. Dixon, 509 U.S. 688, 696, 113 S.Ct. 2849, 125 L.Ed.2d 556 (1993); see also Weinn v. State, 326 S.W.3d 189, 192 (Tex. Crim. App. 2010) (stating that double jeopardy is violated when there is “a second prosecution for the same offense after conviction” (quoting Brown v. Ohio, 432 U.S. 161, 165, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977))). The Blockburger test is used to examine a successive prosecution claim. Brown, 432 U.S. at 166 & n.6, 97 S.Ct. 2221 (citing Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932)). During the show cause hearing, the State presented the charging instrument from Appellant's second DWI as evidence that she violated the bond conditions of her first DWI. The trial court found Appellant guilty of contempt. Because Appellant's contempt guilt may be premised on her second DWI, which is the basis of this instant criminal prosecution, she may be currently facing a second prosecution after already being punished during the contempt proceeding.

The Court appears to concede as much when it says that the trial prosecutor “was prosecuting Appellant for contempt of court for having committed a second DWI ․ [and t]he trial court confirmed as much in two instances.” Maj. Op. at 8–9. But the Court says, “[s]till, because the show cause order did not state an offense, it was void for failing to provide Appellant with sufficient notice. The contempt judgment based on it was void, and a void judgment does not bar a successive prosecution. Therefore, Appellant's successive prosecution claim fails.” Id. at 9 (internal citation omitted). But, as this Court has repeatedly recognized, “all substantive defects in indictments are waivable under the statutes and these defects do not render the indictment ‘void.’ ” Teal v. State, 230 S.W.3d 172, 178 (Tex. Crim. App. 2007) (citing Studer v. State, 799 S.W.2d 263, 272 (Tex. Crim. App. 1990)). Admittedly, Teal dealt with indictments, rather than show cause orders in criminal contempt proceedings. However, the same principles should apply here, where the trial court's criminal contempt charging instrument purportedly failed to adequately notice Appellant, and Appellant nevertheless waived the notice defect by withdrawing her objection to a lack of notice. Thus, the contempt judgment was not void. I would remand the case to the court of appeals to determine the merits of Appellant's successive prosecution claim in the first instance.²

II. Response to the Court's Opinion

The Court says that my suggestion to remand on the successive prosecution claim rests on “two faulty premises.” Maj. Op. at 10. First, that “jurisdiction may be waived”; and second, that “Appellant's waiver notice was freely made.” Id. at 10–11. I address these in turn.

To argue that jurisdiction may not be waived, the Court cites Marin v. State, 851 S.W.2d 275, 279 (Tex. Crim. App. 1993). In Marin, we correctly held that “[t]he clearest cases of nonwaivable, nonforfeitable systemic requirements are laws affecting the jurisdiction of the courts.” Id. We provided examples: first, “a person may not be tried in Texas for a felony offense by the County Court at Law, even if he consents”; and second, “[a] fifteen-year-old child may not be tried as an adult, even with his permission, unless the juvenile court relinquishes jurisdiction of him.” Id. (first citing Garcia v. Dial, 596 S.W.2d 524, 527 (Tex. Crim. App. 1980); and then citing Ex parte Stanley, 703 S.W.2d 686 (Tex. Crim. App. 1986)). But these nonwaivable examples refer to subject-matter jurisdiction. The trial court had subject-matter jurisdiction over Appellant's criminal prosecution and the contempt proceedings. Marin’s nonwaivable subject-matter jurisdiction examples do not answer the question of whether the trial court had personal jurisdiction over Appellant.

The Court then says that Appellant did not freely waive personal jurisdiction. The Court states, “Appellant's waiver of notice was produced by the trial court's threat to leave her in jail even longer if she insisted on notice, it was not a free choice but was a coerced one.” Maj. Op. at 11. Setting aside the fact that the Court cites no authority to support its position, the Court's assertion takes the trial court's words out of context. Based on the record as a whole, Appellant satisfied those waiver requirements. Before the trial court, Appellant argued that the show cause order lacked sufficient notice:

Trial Counsel: We believe the Defendant should -- this Court should not grant or enter a judgment finding the Defendant in contempt of violating your bond conditions, your Honor, for a few reasons. First, we would argue that there was deficient notice in this case, your Honor.

The trial court, apparently finding merit in Appellant's argument that the show cause order lacked sufficient notice by failing to state the substance of the contempt allegations, proposed the following solution:

The Court: All right. So, what we'll do is we'll just leave her in custody and give you a notice that states all of her law violations that she received and go from there. So, we'll come back again in -- what's today? Today is Tuesday?

Trial Counsel: Today is Tuesday, your Honor.

The Court: You want to come back on Friday? Or I mean, how do you -- I mean, it's more time your client sits in jail. That's longer than what you say the penalty is. I want to make sure you feel that you have the right notice.

In this context, when the trial court referred to wanting to make sure Appellant received “the right notice,” the trial court referred to the show cause order's deficient notice of the allegations against Appellant and the potential punishment for a finding of guilt. This conclusion is supported by the trial court's statement that it wanted to give Appellant “notice that states all of her law violations that she received.” Read in the proper context, the trial court was responding directly to Appellant's objection that the show cause order lacked sufficient particularity about the allegations that provided the basis for the contempt hearing. The trial court then asked whether Appellant wanted to proceed:

The Court: So, do you want to go forward on the notice or you want to withdraw the notice?

Trial Counsel: I can withdraw the notice claim and we can go forward with asking for leniency and not exceeding the statutory maximum of three days and/or a fine of $100, your Honor.

(Emphasis added). Appellant objected to the trial court's lack of personal jurisdiction over her due to the defective notice in the show cause order. Appellant then waived that jurisdictional defect—“I can withdraw the notice claim”—and permitted the trial court to impose judgment on the contempt proceedings.

In sum, the trial court's comment was not a threat. When properly analyzed in its context, the trial court was simply informing Appellant and her trial counsel of the consequences of Appellant requesting the notice, and the trial court wanting to give her such notice. The trial court was within its authority to not release Appellant before the contempt issue was decided, and a natural consequence of that was that Appellant would remain in custody. Informing Appellant and her trial counsel of that fact did not render Appellant's waiver “not a free choice.”³

If Appellant can forfeit an objection to a defect in the show cause order at issue, it follows that Appellant can waive a similar defect in that same instrument. After Appellant waived the show cause order's defect, the trial court had both subject-matter jurisdiction over Appellant's contempt proceedings and personal jurisdiction over Appellant.

III. Conclusion

The trial court had both subject-matter jurisdiction over the proceeding and personal jurisdiction over Appellant. Consequently, Appellant's contempt judgment was not void. I would remand the case to the court of appeals to evaluate Appellant's successive prosecution claim in the first instance. Because the Court does not, and instead grants Appellant relief, I respectfully dissent.

FOOTNOTES

1.   The majority posits that the contempt order is criminal rather than civil based on our previous reliance on Texas Supreme Court precedent regarding constructive criminal contempt convictions. See Ex parte Rhodes, 974 S.W.2d 735, 740 (Tex. Crim. App. 1998) (citing Ex parte Chambers, 898 S.W.2d 257, 259 (Tex. 1995)). As Chambers makes clear the distinction between “civil” and “criminal” contempt is not simple and does not depend on the title of the court—civil or criminal—or the nature of the underlying proceeding. Instead, that determination turns on whether the judge's purpose is coercing future compliance or punishing past behavior. Shillitani v. United States, 384 U.S. 364, 369–70, 86 S.Ct. 1531, 16 L.Ed.2d 622 (1966); see United States v. Marquardo, 149 F.3d 36, 39 (1st Cir. 1998) (“The purpose of civil contempt is to coerce compliance with an order of the court ․ Criminal contempt, on the other hand, is used to punish disobedience with a judicial order, and thus vindicates the authority of the court.”). Here, the judge was dealing with enforcing behavior limits on a bond and imposed minimal consequences that could be seen as intended to secure future conformance. While this form of punishment could be seen as civil contempt, see United States v. Norris, 149 F.3d 1173 (5th Cir. 1998), I will assume that criminal contempt was intended.

2.   While Dixon also dealt with respondents’ criminal contempt convictions, a majority of courts have agreed that, in the context of Dixon and probation or supervised release cases, punishment for violation of terms of release are part of an original sentence and constitute punishment for the crime underlying that sentence. See, e.g., United States v. Woods, 127 F.3d 990, 992 (11th Cir. 1997) (“[S]ubsequent prosecution for the criminal conduct committed while on probation constitutes prosecution for an entirely new offense and is not precluded by the Double Jeopardy Clause.”); United States v. Jackson, 952 F.3d 492, 500–01 (4th Cir. 2020) (“[W]hen a defendant is convicted of a new crime while on supervised release, he may receive both a new sentence for the new offense and a revocation sentence.”).

3.   Had the bond added a requirement that Appellant engage in no conduct giving rise to “reasonable suspicion” of criminal conduct prompting law enforcement to spend further resources on a stop, we would have yet a third potential basis for the decision. Whether any such conditions are proper is not before us. Rather, we simply must ask what the court necessarily decided.

1.   “[S]ubject matter jurisdiction cannot be conferred by agreement of the parties.” State v. Roberts, 940 S.W.2d 655, 657 (Tex. Crim. App. 1996).

2.   The Court takes the extraordinary step of deciding that Appellant's “multiple punishments claim is meritorious.” Maj. Op. at 1. Consequently, the Court “reverse[s] the judgment of the court of appeals and remand[s] to the trial court for dismissal of the [second] DWI charge.” Id. at 14. “Ordinarily we would not reach an issue that the court of appeals did not address; but if the resolution of the issue is ‘clear’ or ‘plain,’ then judicial economy justifies this Court in reaching the issue in the first instance.” See Jordan v. State, 593 S.W.3d 340, 346 (Tex. Crim. App. 2020) (citing and quoting Davison v. State, 405 S.W.3d 682, 691–92 (Tex. Crim. App. 2013)); see also Cooper v. State, 933 S.W.2d 495, 496 (Tex. Crim. App. 1996). But the merits issue is neither “clear” nor “plain.” The court of appeals below did not address the merits of Appellant's double jeopardy claim. Instead, the court of appeals held that the trial court vacated the contempt order because it was defective. Ex parte Estevez, No. 01-23-00216-CR, 2024 WL 3107688, at *6–7 (Tex. App.—Houston [1st Dist.] June 25, 2024). The Court errs to address the merits of Appellant's double jeopardy claim without first remanding to the court of appeals to give that court the opportunity to do so.

3.   To the extent that the Court implies that an action becomes involuntary by virtue of a threat, this Court and others have rejected such a notion in other factual scenarios. See, e.g., Johnson v. State, 803 S.W.2d 272, 287 (Tex. Crim. App. 1990) (“[A] consent to search given in response to a threat to seek or obtain a search warrant has been upheld as voluntary.”); Bordenkircher v. Hayes, 434 U.S. 357, 364–65, 98 S.Ct. 663, 54 L.Ed.2d 604 (1978) (rejecting the conclusion that a plea becomes involuntary when a prosecutor, during plea negotiations, threatens to reindict the defendant on more serious charges). The Court does not cite any authority to the contrary.

Keel, J., delivered the opinion of the Court in which Richardson, Newell, Walker, and McClure, JJ., joined.

Schenck, P.J., filed a dissenting opinion. Finley, J., filed a dissenting opinion in which Parker, J., joined. Yeary, J., dissented.