Hon. Annette Kuntz p/k/a Judge Galik | Recent Appeals from the 245th District Court

For contact info for this court go to --> Official 245th District Court web page (Judge Kuntz)

Note: Judge Annette Galik aka Annette Galik Sanderford re-married in 2007 and took
the last name of her new husband, Hal G. Kuntz

RECENT APPEALS FROM CASES IN JUDGE ANNETTE'S COURT

In re McCauley (Tex.App.- Houston (Oct. 31, 2008)(per curiam) (plenary power, void order)
DENY PETITION FOR WRIT OF MANDAMUS: Per Curiam
Before Chief Justice Radack, Justices Nuchia and Higley
01-08-00821-CV In re Brian McCauley
Appeal from 245th District Court of Harris County
Trial Court Judge: Hon. Annette Kuntz

Habeas Corpus granted by Court of Appeals on finding that capias arrest order
entered after erroneous release of mother serving contempt sentence is void

In re Stephanie Ann Bourg (Tex.App.- Houston [1st Dist.] Aug. 12, 2008)(Jennings)
(criminal contempt of court, family court judge's capias order found void in its entirety, habeas corpus
relief granted) GRANT PETITION FOR WRIT OF HABEAS CORPUS:
Opinion by Justice Terry Jennings
Before Chief Justice Radack, Justices Jennings and Bland
01-08-00618-CV In re Stephanie Ann Bourg
Appeal from 245th District Court of Harris County
Trial Court Judge: Hon. Annette Kuntz

Here, the trial court, in its capias order, seeks to impose an additional 180-day sentence against Bourg for a term
certain and "day for day without credit or offset." By its plain terms, the capias order was issued solely because Bourg
had been erroneously released by the Harris County sheriff and, in the trial court's opinion, had not been punished as it
had ordered. Accordingly, we hold that by issuing the capias order, which precludes Bourg from earning good-time
credit, the trial court has exceeded its authority. See Kopeski, 629 S.W.2d at 745; see also Ex parte Suter, 920 S.W.2d
685, 687 n.1 (Tex. App.--Houston [1st Dist.] 1995, no writ). Additionally, by imposing a sentence that fails to account for
any of Bourg's prior days in confinement, the capias order also operates to deprive Bourg of good time she has earned
in the past. Accordingly, we further hold that the portion of the capias order depriving Bourg from her right to earn good-
time credit is void.

It is undisputed that Bourg was erroneously released through no fault of her own. Moreover, it is clear that the trial
court's capias order is not based on any new contempt violations, but rather is solely based on the trial court's opinion
that Bourg has not been punished in accordance with its prior orders. There is nothing in the record to indicate that
Bourg was being ordered to return to jail because she violated any terms and conditions of the trial court's various
orders or committed any other acts of wrongdoing other than those specified in the prior orders. Moreover, we note that
the trial court did not simply order Bourg to be returned to jail to serve the remaining balance of her sentence, but
instead imposed a completely new sentence for an additional 180 days of confinement. The trial court's capias order,
by not accounting for the period during Bourg's erroneous release, violates well-settled authority providing that Bourg's
sentence continued to run during the period of her erroneous release. See Ex parte Hale, 117 S.W.3d 866, 872-73 & n.
26 (Tex. Crim. App. 2003); see also Ex parte Cross, No. AP-75700, 2007 WL 1704062, at *1 (Tex. Crim. App. June 13,
2007) (per curiam) (mem. op., not designated for publication). Thus, the trial court exceeded its authority. Accordingly,
we hold that the portion of the capias order that violates the authority establishing that Bourg's contempt sentence
continued to run during the period of her erroneous release is void.

Having held that the capias order is void because it violates Bourg's right to earn good-time credit and having held that
the capias order is void because it fails to account for the period of her erroneous release, and, because the trial court,
in its capias order, imposed an additional 180 days of confinement based upon Bourg's erroneous release and not
based upon any new contempt violations, we further hold that the capias order is void in its entirety.

In re Tam Pamela Tran (Tex.App. - Housotn [1st Dist.] June 26, 2008)(per curiam)
(habeas corpus petition dismissed based on settlement)
DISMISS PETITION FOR WRIT OF HABEAS CORPUS: Per Curiam
Before Justices Nuchia, Alcala and Hanks
01-08-00054-CV        In re Tam Pamela Tran
Appeal from 245th District Court of Harris County
Trial Court Judge: Hon. Annette Kuntz

Marcum v. Marcum (Tex.App.- Houston [1st Dist.] June 12, 2008)(Alcala)
(divorce case, property division, alter ego, piercing corporate veil, jury selection, peremptory
challenges)
AFFIRM TC JUDGMENT: Opinion by Justice Alcala
Before Justices Nuchia, Alcala and Hanks
01-04-01062-CV        Kenneth Ray Marcum v. Darlene J. Marcum
Appeal from 245th District Court of Harris County
Trial Court Judge: Hon. Annette Ga lik

Curttright v. Curttright (Tex.App.- Houston [1st Dist.] Apr. 3, 2008)(Hanks)(family law, divorce,
sanctions)
AFFIRM TC JUDGMENT: Opinion by Justice Hanks
Before Justices Nuchia, Hanks and Higley
01-07-00117-CV Lisa Vo Curttright v. Paul Easton Curttright
Appeal from 245th District Court of Harris County
Trial Court Judge: Hon. Annette Galik

Appeals Court Orders Transfer of Venue in SAPCR/Modification Suit

In re Wilson (Tex.App.- Houston [1st Dist.] Apr. 26, 2007)(Hanks)(mandamus)(transfer of venue was
mandatory)(mandamus, venue, family law, mandatory venue, court of continuing jurisdiction)
GRANT PETITION FOR WRIT OF MANDAMUS: Opinion by Justice Hanks
Before Justices Taft, Alcala and Hanks
01-07-00013-CV        In re Ronnie D. Wilson
Appeal from 245th District Court of Harris County (Hon. Annette Galik n/k/a Kuntz)

Bill of Review denied in challenge to decree of divorce with nonmarital child

Thomas v. Thomas (Tex.App.- Houston [14th Dist.] Aug. 23, 2007)(Seymore)(bill of review denied,
divorce, nonmarital child)
AFFIRMED: Opinion by Justice Seymore
Before Justices Frost, Seymore and Guzman
14-06-00069-CV William Robert Thomas v. Patricia Russell Thomas
Appeal from 245th District Court of Harris County (Judge G. Annette Galik n/k/a Kuntz)

Mandatory Venue in Family Law Case enforced by Mandamus

In re Wilson (Tex.App.- Houston [1st Dist.] Apr. 26, 2007)(Hanks)
[mandamus, venue, MTV, family law, children six month residency, court of continuing jurisdiction]
GRANT PETITION FOR WRIT OF MANDAMUS: Opinion by Justice Hanks
Before Justices Taft, Alcala and Hanks
01-07-00013-CV        In re Ronnie D. Wilson
Appeal from 245th District Court of Harris County (Hon. Annette Galik n/k/a Kuntz)

Court of appeals denies habeas corpus relief in contempt case

In re Aurelio Sotelo Flores (Tex.App.-Houston [1st Dist.] Nov. 3, 2006)(per curiam)
[habeas corpus relief denied, relator not restrained, dismissed for want of jurisdiction, DWOJ]
DISMISS PETITION FOR WRIT OF MANDAMUS: Per Curiam
Before Justices Nuchia, Jennings and Higley
01-06-00733-CV In re Aurelio Sotelo Flores
Appeal from 245th District Court of Harris County (Judge Annette Galik)

("We dismiss relator’s petition for want of jurisdiction because the issue about which
relator complains is not ripe for consideration in this habeas proceeding. Footnote See
In re Easton, No. 14-06-00674-CV, slip op. at 3, 2006 Tex. App. LEXIS 7095 (Tex. App.
—Houston [14th Dist.] Aug. 10, 2006, orig. proceeding) (held court of appeals has no
jurisdiction to entertain application for writ of habeas corpus when trial court had issued
writ of attachment for relator’s arrest because he had failed to appear for contempt
hearing, but was not confined and, to the court’s knowledge, was still evading writ of
attachment)")

Opinion issued November 3, 2006

In The

Court of Appeals

For the

First District of Texas
____________

NO. 01-06-00733-CV
____________

IN RE AURELIO SOTELO FLORES, Relator

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Original Proceeding on Petition for Writ of Habeas Corpus

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MEMORANDUM OPINION

Relator, Aurelio Sotelo Flores, has filed a petition for a writ of habeas corpus, challenging an order of
capias for his arrest issued in the trial court.

1 The underlying lawsuit is In the Interest of Zuriel Flores-Cuevas and RaquelFlores-Cuevas, Minor
Children, No. 2005-43269, In the 245th District Courtof Harris County, Texas.

In his petition, relator asserts that the trial court’s underlying child support order, which the real party in
interest, Letisia Cuevas, seeks to enforce, is ambiguous and void.

Relator’s two children are six-years old and four-years old. Relator contends that the language of the
child support order is ambiguous because it makes noprovision for a reduction in child support when
the oldest child becomes 18 years of age or is otherwise emancipated.

Relator is not physically restrained, and the trial court has not adjudicated him to be in contempt. The
trial court issued its order of capias for relator’s arrest because he did not appear at a May 25, 2006
hearing on Cuevas’s motion to enforce the child support order. As of the date of the petition, the
capias had not been executed, and, as of the date of the opinion, it remains unexecuted.

Restraint

To obtain habeas corpus relief, the relator’s liberty must be restrained. Texas Government Code,
section 22.221(d) provides that we may

issue a writ of habeas corpus when it appears that the restraint of liberty is by virtue of an order,
process, or commitment issued by a court or judge because of the violation of an order, judgment, or
decree previously made, rendered, or entered by the court or judge.

Tex. Gov’t Code Ann. § 22.221(d) (Vernon 2004). Here, the trial court did not hold the hearing on the
motion to enforce, and its order to appear is the only order the trial court could have determined
relator violated. Because relator has not been adjudicated in contempt of the trial court’s child support
order, the issue of whether it is ambiguous or void is premature.

Relator has made this a point of error in his appeal currently pending before this Court.

Conclusion

We dismiss relator’s petition for want of jurisdiction because the issue about which relator complains is
not ripe for consideration in this habeas proceeding.

Citing Ex parte Williams, 690 S.W.2d 243 (Tex. 1993), relator argues that an appellate court may issue
a writ of habeas corpus to an applicant who is not actually confined. However, in Williams, Williams had
already been adjudicated in contempt and sentenced, his sentence suspended, and his bond
conditions imposed. Id.

See In re Easton, No. 14-06-00674-CV, slip op. at 3, 2006 Tex. App. LEXIS 7095 (Tex. App.—Houston
[14th Dist.] Aug. 10, 2006, orig. proceeding) (held court of appeals has no jurisdiction to entertain
application for writ of habeas corpus when trial court had issued writ of attachment for relator’s arrest
because he had failed to appear for contempt hearing, but was not confined and, to the court’s
knowledge, was still evading writ of attachment).

PER CURIAM

Panel consists of Justices Nuchia, Jennings, and Higley.