COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

EX PARTE: ANTONIO BARRIENTEZ

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No. 08-14-00004-CR

Appeal from the

168th District Court

of El Paso County, Texas

(TC# 20120D01144/2013DCV1544)

O P I N I O N

Antonio Barrientez appeals the trial court’s order denying him habeas corpus relief from 

indictment in Cause No. 20120D01144. In his sole issue, he contends that the Double Jeopardy 

Clause bars any prosecution for violation of sex offender civil commitment terms because it 

would effectively allow the State to punish him twice for the same crime. We affirm.

BACKGROUND

Following his apparent conviction for an unknown sex offense,1 Appellant entered into 

an agreed judgment civilly committing him to certain restrictions as a sexually violent predator 

in Montgomery County, Texas. As part of the terms of his civil commitment, Appellant could 

 

1 Although Appellant claims this conviction bars the instant prosecution under double jeopardy, Appellant never 

makes clear what specific sex crime he was found guilty of, nor does any record of that conviction appear in the 

appellate record before this Court.
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not possess a cellular phone without prior approval from the Office of Violent Sex Offender 

Management.

Subsequently, the State indicted Appellant for violating his civil commitment terms by 

possessing an unauthorized cell phone in a correctional facility, enhanced by a previous 2010 

conviction for the same offense. Appellant filed for a pretrial writ of habeas corpus, contending 

that both the civil commitment and the prosecution for violating the terms of the civil 

commitment constituted punishments in violation of his double jeopardy rights. The trial court 

denied relief, and he appealed.

DISCUSSION

Appellant maintains that double jeopardy bars prosecution in this case. We disagree.

Standard of Review

We review the facts underlying the trial court’s habeas corpus decision “in the light most 

favorable to the trial judge’s ruling and should uphold [that ruling] absent an abuse of 

discretion.” [Internal quotation marks omitted]. Ex parte Quintana, 346 S.W.3d 681, 684 

(Tex.App.--El Paso 2009, pet. ref’d). We review de novo mixed questions of law and fact that 

do not hinge on credibility or demeanor determinations. Ex parte Miller, No. 08-11-00245-CR, 

2012 WL 5949741, at *2 (Tex.App.--El Paso Nov. 28, 2012, no pet.)(not designated for 

publication).

Analysis

“The Double Jeopardy Clause protects criminal defendants from three things: 1) a 

second prosecution for the same offense after acquittal; 2) a second prosecution for the same 

offense after conviction; and 3) multiple punishments for the same offense.” Ex parte Milner, 

394 S.W.3d 502, 506 (Tex.Crim.App. 2013). The thrust of Appellant’s argument, near as we can 
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construe it, is that the State seeks to punish him for his sex offense for the third time—first, 

through his conviction; second, through the civil commitment process; and third, by prosecuting 

him for violating the terms of that commitment.

The State, as a threshold matter, argues that we should not consider any constitutional 

challenges to the commitment process on collateral review and that the only issue properly 

before the Court is double jeopardy as to the commitment violation charge. We agree. Although 

Appellant has cited to cases that discuss civil commitment processes in light of both due process 

and double jeopardy, Appellant has not briefed any argument on the as-applied constitutionality 

of Texas’ civil commitment regime, and we will not address that issue, nor can we in this 

procedural posture. See Ex parte Ellis, 309 S.W.3d 71, 79 (Tex.Crim.App. 2010)(as-applied 

constitutional challenges are generally not cognizable as pretrial habeas corpus claims). Instead, 

Appellant’s brief presents only a double jeopardy challenge.

We also note that Appellant cannot use his habeas corpus petition to collaterally attack 

the agreed civil commitment order on double jeopardy grounds. See Adams v. State, 222 S.W.3d 

37, 56-57 (Tex.App.--Austin 2005, pet. ref’d)(defendant could not collaterally attack civil 

commitment order in direct appeal from criminal conviction). Even if Appellant could 

collaterally attack the agreed civil commitment order in this case, it is well-settled that a sex 

offender civil commitment proceeding is not “punitive,” see In re Commitment of Fisher, 164 

S.W.3d 637, 653 (Tex. 2005); Adams, 222 S.W.3d at 55-56, and that imposition of civil 

commitment is not considered to be “punishment” under double jeopardy jurisprudence because 

its purpose is ostensibly preventive and not retributive. See In re Commitment of Browning, 113 

S.W.3d 851, 862 (Tex.App.--Austin 2003, pet. denied)(defendant not entitled to criminal 

constitutional procedures, including protection against double jeopardy, because sex offender 
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was civil proceeding and not a punitive criminal proceeding).

Appellant correctly recognizes this fact, but notes that while the Texas Supreme Court 

has decided in Fisher that the statute here is not punitive, we would be justified in relying on the 

rationale expounded upon in the Corpus Christi Court of Appeals opinion that Fisher reversed2 

because the Texas Court of Criminal Appeals has apparently not passed on this issue. Even so, 

silence from one high court does not mean we are free to disregard the other high court’s ruling 

in Fisher until both courts have ruled on this issue. Intermediate courts are bound by the 

decisions of the high courts. In re Judd, 391 S.W.3d 561, 563 n.4 (Tex.App.--Texarkana 2013, 

orig. proceeding)(intermediate appellate court may not disregard authority from Texas Supreme 

Court under stare decisis); Bryant v. State, No. 14-11-00820-CR, 2012 WL 5378116, at *6 

(Tex.App.--Houston [14th Dist.] Nov. 1, 2012, no pet.)(mem. op., not designated for 

publication)(intermediate court must adhere to Court of Criminal Appeals decisions out of 

“principles of vertical stare decisis”). Here, we have a definitive answer on a legal question 

from one of the two high courts. Absent conflicting authority, we cannot disregard the Texas 

Supreme Court’s legal determination under stare decisis. Appellant is not entitled to relief on 

this ground.

Finally, we reject Appellant’s contention that punishing him for violating the civil 

commitment requirements constitutes a second punishment for the sex offense that led to his 

commitment. First, we have no information in the record pertaining to the original sex offense, 

and thus cannot determine how the conduct at issue is related to that offense either elementally 

under the Blockburger3test or in terms of evidence. See Ex parte Chairez, No. 08-00-00083-CR, 

2001 WL 63033, at *2-*3 (Tex.App.--El Paso Jan. 25, 2001, no pet.)(not designated for 

 

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In re Commitment of Fisher, 123 S.W.3d 828 (Tex.App.--Corpus Christi 2003, pet. granted).

3 Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306 (1932).
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publication)(habeas proponent bears burden of proving claim). Simply put, we cannot process 

Appellant’s claim without knowing what the original charge was. Second, to the extent 

Appellant argues abstractly that any prosecution for violating civil commitment requirements is a 

second punishment for the underlying sex offense per se, we note that our sister courts 

addressing this issue have held otherwise. Ex parte Darnell, No. 2-08-229-CR, 2009 WL 

976021, at *1 (Tex.App.--Fort Worth Apr. 9, 2009, pet. ref’d)(mem. op., not designated for 

publication); cf. Smith v. Doe, 538 U.S. 84, 102, 123 S.Ct. 1140, 1152, 155 L.Ed.2d 164

(2003)(noting, in challenge to Alaska sex offender law, that any prosecution stemming from a 

registration violation “is a proceeding separate from the individual’s original offense”). The 

offense of possessing a cellular phone while subject to civil commitment requirements is a 

separate and distinct offense from the sex offense for which Appellant was convicted. Because 

Appellant has not explained how his particular case differs or distinguished applicable law, we 

proceed no further in our analysis.

Issue One is overruled. The judgment of the trial court is affirmed.

June 3, 2015

YVONNE T. RODRIGUEZ, Justice

Before McClure, C.J., Rodriguez, and Hughes, JJ.

(Do Not Publish)