In Re Noha M. Goldrup v. the State of Texas

COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS

IN RE: NOHA M. GOLDRUP, § No. 08-24-00311-CV

Relator. § AN ORIGINAL PROCEEDING

§ IN MANDAMUS

§

MEMORANDUM OPINION

This mandamus arises out of a discovery dispute in a divorce proceeding resulting in an

order finding Relator, Noha M. Goldrup (Mother), in contempt. In the Contempt Order, the

Honorable Lyda Ness-Garcia, Presiding Judge of the 383rd Judicial District Court, found that

Mother was in violation of an Order for Forensic Imaging of Electronic Devices (Forensic Imaging

Order) signed on September 8, 2023. The Contempt Order assessed a fine of $500 and commitment

for a period of one day in the El Paso County Jail, suspending commitment on the condition that

Mother produce the disputed discovery. Mother presents three issues challenging the validity of

the Contempt Order, asserting that she received inadequate notice at key procedural stages—

including untimely notice of the Forensic Imaging Order, inadequate notice of the conduct alleged

in the Motion for Enforcement, and ambiguity in the Forensic Imaging Order’s terms—while

maintaining across all issues that the record affirmatively establishes her inability to comply. She
asks this Court to find that Judge Ness-Garcia abused her discretion and to vacate the Contempt

Order. As explained below, we conclude Mother had adequate notice and we deny the petition for

writ of mandamus.

I. FACTUAL BACKGROUND

During their marriage, Mother and Real Party in Interest, Mark Goldrup (Father), lived in

multiple residences domestically and internationally including South Africa, Estonia, Mexico,

Washington, DC, Virginia, and El Paso, Texas. Mother filed for a protective order against Father

in a Virginia state court on February 3, 2021, and for divorce in the 383rd Judicial District Court

in El Paso, Texas on May 7, 2021. The underlying dispute in the trial court concerns audio and

video recordings that Mother produced during discovery for the Virginia litigation but has not

produced in this litigation. 1

When Mother failed to produce requested discovery, Father moved to compel production

and for sanctions. On July 13, 2023, the trial court held a hearing on Father’s motion and

announced that it was overruling Mother’s objections and granting the motion to compel. 2 At the

conclusion of the hearing, Father attempted to clarify the trial court’s ruling regarding the timeline

for production of devices with recordings. The trial court did not set a date for production, opting

instead to give the parties additional time to coordinate with Justiss Rasberry, the expert qualified

to perform the data extraction, and to confer on available dates.

1
The record indicates that Mother has produced some recordings, but Father alleges that those recordings have been
altered. Father is seeking the production of original, unaltered recordings, any subsequent versions or iterations, altered
versions (if they exist), and metadata to prove whether recordings were altered or manipulated in any way. We express
no opinion on the authenticity or admissibility of any of the recordings.
2
Father’s motion to compel is not included in the mandamus record. The trial court indicated, in the transcript for the
July 13, 2023 hearing, that the motion included 49 complaints regarding discovery production. After two hours, the
trial court ruled on three of the 49 and suggested to the parties that the rest be resolved on submission.

2
Three months later, at a hearing on September 7, 2023, Father asked the trial court to enter

a proposed order for production, arguing that Mother refused to respond to attempts to confer.

After limited argument from both sides, the trial court orally ordered that Mother produce the

devices on or before September 14th. The trial court’s oral ruling was memorialized in a written

order the next day, September 8, 2023. In resolving the dispute over production, the trial court

compelled Mother to produce “Devices” containing “Recordings,” stating:

The Court finds and IT IS THEREFORE ORDERED that Grace Rubio, of Rubio
Digital Forensics, shall forensically image each and every device of [Mother’s]
devices that contain Recordings as defined hereinbelow, which include but are not
limited to [Mother’s] cell phones, cameras, video cameras and other device[s]
capable of recording video and/or sound (hereinafter the “Devices”). IT IS
THEREFORE ORDERED that [Mother] shall deliver the Devices to Rasberry &
Associates . . . on September 14, 2023 at 9:00 a.m. . . .

The forensic imaging to be conducted by Grace Rubio shall be limited to the
purpose of the search for, and the extraction of, the following information
hereinafter referred to as the “Recordings”:

1. All recordings, whether auditory or visual, taken of [Father] and/or the
children since May 7, 2019, including but not limited to the native
recordings from the original source of the recordings, and any
subsequent iterations of the recordings; and

2. Any and all metadata related to the native recording and/or subsequent
iterations of the recordings, including but not limited to data reflecting
the specific make, model, and serial number of the device used for
recording and/or storing the original recording and any subsequent
iterations of the recording, the software format used for storing the
original recording and any subsequent iterations of the recording, and
any software used to edit and/or alter the original recording and any
subsequent iterations in any manner.

Although the trial court orally ordered production at the hearing on September 7, 2023, and signed

the Forensic Imaging Order on September 8, 2023, it was not filed by the District Clerk until

September 13, 2023. The e-service certificate shows that Mother’s then attorney was electronically

served with the Forensic Imaging Order on September 13, 2023. On September 18, 2023, after

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Mother failed to comply with the Forensic Imaging Order, Father filed his Motion for Enforcement

seeking both civil and criminal contempt.

For reasons we cannot discern on the record before us, the Motion for Enforcement was

not set for a hearing until July 24, 2024, ten months after the trial court entered the Forensic

Imaging Order. At the hearing, Rasberry testified that Mother did not deliver any “Devices” for

imaging on September 14, 2023, and instead delivered an affidavit executed September 11, 2023,

in which she averred that she no longer had any of the requested “Devices” in her possession.

Father testified that he had knowledge that Mother owned multiple “Devices,” including a Google

Pixel 4 phone, which was backed up to Google Drive, a cloud storage platform, since she initiated

the Virginia and Texas litigation. He testified that he confirmed the Pixel 4 was backed up

February 9, 2021, and that as he understood Google Drive, unless someone deleted the files from

Google Drive, the files would be available on subsequent phones.

Mother asserted the affirmative defense of inability to comply.3 She initially testified that

she was unable to comply because she did not receive a copy of the Forensic Imaging Order until

September 18, 2023. The trial court, however, noted on the record that Mother had been present

when the Forensic Imaging Order was orally rendered. In response, Mother stated that she did not

understand the nature of the oral ruling at the time and had been waiting to receive a written order.

Mother further testified that she understood the Forensic Imaging Order to require production of

“Devices” containing original “Recordings” and claimed she could not comply because she no

longer possessed any “Devices” on which the originals were made. Father objected to this

testimony, arguing that it conflicted with Mother’s prior discovery responses in which she stated

3
Father objected to Mother’s inability-to-comply defense on the ground that it was not affirmatively pleaded in a
response to the Motion for Enforcement. The trial court overruled the objection.

4
she could neither admit nor deny whether she was in possession of the “Devices.” Mother

responded that she had supplemented her discovery responses by submitting a September 11, 2023

affidavit in which she denied possessing any such “Devices.” Neither Mother’s testimony nor her

affidavit, however, identifies when she disposed of or otherwise lost possession of the “Devices.”

Instead, both merely state that she was not in possession of the “Devices” as of

September 11, 2023—the date she executed the affidavit.

Before Mother’s testimony concluded, the parties sought to revisit discovery disputes that

the trial court had previously resolved. The court promptly ended the discussion, emphasizing its

familiarity with the discovery record, reiterating that it had made clear during the July 13, 2023

hearing that Mother would be required to produce the “Devices,” and noting that it had presided

over multiple hearings culminating in the Forensic Imaging Order that Mother was accused of

violating.

At the conclusion of the hearing, the trial court clarified that enforcement of the Forensic

Imaging Order was a separate procedural matter focused on compliance. The trial court

acknowledged that the parties’ broader dispute concerned the admissibility of the recordings and

expressly reserved those questions for a later stage of the litigation. The next day, the trial court

entered an order finding Mother in contempt as follows:

7. Criminal Contempt

IT IS FURTHER ORDERED that punishment for the violation enumerated above
is assessed at a fine of $500.00 and confinement in the county jail of El Paso
County, Texas, for a period of one (1) day.

IT IS THEREFORE ORDERED that NOHA M. GOLDRUP is committed to the
county jail of El Paso County, Texas, for a period of one (1) day for the violation
enumerated above.

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8. Suspension of Commitment

IT IS FURTHER ORDERED that commitment is suspended on the following terms
and conditions:

IT IS SO ORDERED that NOHA M. GOLDRUP shall deliver each and every
device of NOHA M. GOLDRUP’s devices that contain Recordings as defined
hereinbelow, which include but are not limited to NOHA M. GOLDRUP’s cell
phones, cameras, video cameras and other device[s] capable of recording video
and/or sound . . . for forensic imaging on or before August 9th, 2024 at 4:00 p.m.
MST[.]

Mother now seeks mandamus relief arguing that the Contempt Order is void.

II. MANDAMUS OR HABEAS CORPUS?

As a threshold issue, the parties dispute whether mandamus is an available remedy. Father

urges us to dismiss the petition on the ground that a Contempt Order, which includes the possibility

of confinement, may only be reviewed by writ of habeas corpus. In support of his position, Father

relies on Deramus v. Thornton, a case where the Texas Supreme Court previously held “that the

validity of a contempt judgment can be attacked only collaterally and that by way of habeas

corpus.” 333 S.W.2d 824, 827 (1960) (orig. proceeding). However, Deramus expressly

acknowledged that mandamus review of contempt orders may be appropriate in certain

circumstances. Id. at 827 (“We are not to be understood as saying, however, that there may not

arise conditions involved in contempt matters where the writ of habeas corpus would not be

adequate and where mandamus would be the proper remedy.”).

In fact, more recent Texas Supreme Court decisions hold that, because the Court of

Criminal Appeals has exclusive original jurisdiction over habeas corpus, mandamus is available

to challenge a contempt order that does not involve confinement. See Tex. Const. art. V, § 5; Dunn

v. Street, 938 S.W.2d 33, 35 (Tex. 1997) (reviewing a show cause order and stating that Deramus

was not intended to foreclose mandamus review of contempt orders in all circumstances). Two

6
years after Dunn, the Texas Supreme Court, in In re Long, recognized that a writ of mandamus is

an appropriate remedy when the contempt order at issue does not involve confinement. 984

S.W.2d 623, 625 (Tex. 1999) (orig. proceeding) (“Contempt orders that do not involve

confinement cannot be reviewed by writ of habeas corpus, and the only possible relief is a writ of

mandamus.”); accord In re Reece, 341 S.W.3d 360, 369 (Tex. 2011) (orig. proceeding).

Conversely, when the contemnor has been confined or released on bond, a contempt order is

properly reviewed by an application for writ of habeas corpus. In re Cisneros, 487 S.W.3d 237, 241

(Tex. App.—El Paso 2015, orig. proceeding).

Here, the Contempt Order assesses a fine and commitment, suspending the commitment

provided that Mother deliver “Devices” (“which include but are not limited to . . . cell phones,

cameras, video cameras and other device[s] capable of recording video and/or sound”) that contain

“Recordings,” (i.e., audio or video recordings taken of Father and/or the children since

May 7, 2019) as those terms are defined in the Forensic Imaging Order and the Contempt Order.

When commitment is assessed but suspended, an order is reviewable by petition for writ of

mandamus rather than habeas corpus. See id. at 241 (finding mandamus review appropriate when

the relator had not yet been taken into custody); In re Look, No. 01-02-00959-CV, 2003

WL 876650 at *2 (Tex. App.—Houston [1st Dist.] March 5, 2003, orig. proceeding) (finding

habeas relief inappropriate when relator’s incarceration was a “speculative possibility,” but

denying mandamus relief on other grounds). Accordingly, because the Contempt Order suspended

commitment, and Mother is not confined, she may seek relief by petition for writ of mandamus.

III. STANDARD OF REVIEW

Mandamus is an extraordinary remedy, available only when there has been a clear abuse

of discretion by the trial court for which there is no adequate remedy by appeal. In re Prudential

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Ins. Co. of America, 148 S.W.3d 124, 135 (Tex. 2004). Because contempt orders are not subject

to direct appeal, there is no adequate remedy by appeal, and the relator need only establish a clear

abuse of discretion. In re Mittelstead, 661 S.W.3d 639, 647 (Tex. App.—Houston [14th

Dist.] 2023, original proceeding). The trial court abuses its discretion if it reaches a decision that

is so arbitrary and unreasonable as to amount to a clear and prejudicial error of law, or if it clearly

fails to analyze or apply the law correctly. In re Cerberus Cap. Mgmt., L.P., 164 S.W.3d 379, 382

(Tex. 2005). We defer to the trial court’s factual determinations that have evidentiary support, but

we review the trial court’s legal determinations de novo. In re Labatt Food Serc., L.P., 279

S.W.3d 640, 643 (Tex. 2009) (orig. proceeding).

In an original proceeding challenging a contempt order, the relator may discharge this

burden by showing that the order is void. See In re Lowry, 511 S.W.3d 256, 256 (Tex. App.—

Dallas 2015, orig. proceeding) (mem. op.) (citing In re Coppock, 277 S.W.3d 417, 418

(Tex. 2009) (orig. proceeding) (habeas context)). A contempt order is void if it was rendered

without adequate notice or if the record presents no evidence of contempt. In re Wal-Mart Stores,

Inc, 545 S.W.3d 626, 631 (Tex. App.—El Paso 2016, orig. proceeding) (finding inadequate

notice); In re D.L., 641 S.W.3d 873, 888 (Tex. App.—Fort Worth 2022, orig. proceeding).

IV. CONTEMPT

Contempt is defined as willful “disobedience to or disrespect of a court by acting in

opposition to its authority.” In re Luther, 620 S.W.3d 715, 721 (Tex. 2021) (orig. proceeding) (per

curiam); Ex Parte Chambers, 898 S.W.2d 257, 259 (Tex. 1995) (orig. proceeding). Courts have

broad and inherent power to punish contemptuous conduct. In re Reece, 341 S.W.3d at 364 (citing

Ex parte Browne, 543 S.W.2d 82, 86 (Tex. 1976) (orig. proceeding). As another threshold matter,

a reviewing court must classify a contempt judgment as either direct or constructive, and as either

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civil or criminal. In re Reece, 341 S.W.3d at 365. The classification is essential because it

determines the procedural protections afforded to the alleged contemnor. In re Gabrielova, 527

S.W.3d 290, 294 (Tex. App.—El Paso 2016, orig. proceeding) (discussing notice requirements);

In re Johnson, 150 S.W.3d 267, 271 (Tex. App.—Beaumont 2004, original proceeding) (op. on

rhr’g).

Direct contempt occurs in the court’s presence and is punishable by immediate action. In

re Reece, 341 S.W.3d at 365. Constructive contempt, in contrast, occurs outside the court’s

presence and affords the alleged contemnor due process considerations including notice,

opportunity to be heard, and representation by counsel. In re Wal-Mart Stores, Inc, 545 S.W.3d at

631. The contempt at issue in this appeal—Mother’s alleged failure to comply with the Forensic

Imaging Order—is constructive contempt. See, e.g., Id. at 631 (classifying failure to comply with

a discovery order as constructive contempt).

Whether a contempt judgment is civil or criminal depends on the nature of the punishment.

In re Reece, 341 S.W.3d at 365. Civil contempt is “remedial and coercive” in nature. Id.; In re

Gabrielova, 527 S.W.3d at 294. It is said that a civil contemnor “carries the keys to the jail cell”

because confinement is conditioned upon compliance with the court’s order. In re Reece, 341

S.W.3d at 365. “Release may be procured or commitment avoided altogether by compliance with

the trial court’s order.” In re Mittlested, 661 S.W.3d at 648. Criminal contempt is punitive in

nature—it is designed to punish a prior act of disobedience rather than to coerce future compliance.

In re Reece, 341 S.W.3d at 365. A criminal contempt conviction for violation of a court order

requires proof beyond a reasonable doubt of: (1) a reasonably specific order; (2) a violation of the

order; and (3) the willful intent to violate the order. Ex parte Chambers, 898 S.W.2d at 259; In re

Braden, 483 S.W.3d 659, 664 (Tex. App.—Houston [14th Dist.] 2015, orig. proceeding) (per

9
curiam). A court may issue an order that assesses punishment for both civil and criminal contempt,

which is considered a “hybrid” order. See Ex parte Sanchez, 703 S.W.2d 955, 957 (Tex. 1986)

(orig. proceeding) (recognizing that courts can combine both forms of contempt in one order).

The contempt at issue in this appeal is hybrid in nature, as the Contempt Order contains

both civil and criminal components. The $500 fine constitutes criminal contempt because it is

punitive and unconditional. In contrast, the suspended commitment is coercive and remedial in

nature as it is designed to compel Mother’s compliance with the Forensic Imaging Order. Mother

may purge the civil contempt and avoid confinement if she complies, but she cannot avoid the

$500 fine, which remains as punishment for her past conduct. See, e.g., Ex parte Busby, 921

S.W.2d 389, 391 (Tex. App.—Austin 1996) (concluding that an order that both allowed a party to

avoid confinement by compliance and assessed a fine that could not be avoided was a hybrid

order). Thus, the Contempt Order before us is a constructive, hybrid order.

V. DISCUSSION

Having now classified the Contempt Order, we turn to Mother’s arguments. As we

understand it, her primary complaint across all three issues, is that she received inadequate notice

throughout the contempt process, which we briefly outline below. If Mother indeed received

inadequate notice, then the Contempt Order is void, and she is entitled to mandamus relief. In re

Wal-Mart Stores, Inc, 545 S.W.3d at 631.

First, an alleged contemnor must have knowledge or notice of the underlying order that

they are accused of violating, and that order must be enforceable by contempt. A party cannot be

held in contempt for violating a court order of which they had no knowledge, as willful

disobedience is a necessary element of contempt. See Ex Parte Chambers, 898 S.W.2d at 259

(“[O]ne must have knowledge or notice of an order which one is charged with violating before a

10
judgment of contempt will obtain.”). To be enforceable by contempt, the language of the order

must provide the means of compliance in “clear, specific, and unambiguous terms so that such

person will readily know exactly what duties or obligations are imposed upon him . . . .” In re

Janson, 614 S.W.3d at 727 (quoting Ex parte Slavin, 412 S.W.2d 43, 44 (Tex. 1967 (orig.

proceeding)); see also In re Coppock, 277 S.W.3d at 418 (orig. proceeding) (requiring an

underlying order to “unequivocally command [] that person to perform a duty or obligation”).

Thus, adequate notice requires both knowledge of the order and clarity of the language. The

underlying order in the present case is the Forensic Imaging Order.

Second, the alleged contemnor is entitled to notice of the contempt allegations against

them. In cases involving criminal contempt, a heightened notice standard applies which requires

two distinct forms of notice: (1) timely personal service of the show cause hearing, and (2) full

and unambiguous notice of the contempt charges. 4 In re Walmart, 545 S.W.3d at 631–32 (citing

Gonzalez v. State, 187 S.W.3d 166, 170 (Tex. App.—Waco 2006, no pet.)). To be full and

unambiguous, the notice of the contempt allegations “must state when, how, and by what means

the person has been guilty of contempt. See In re Cisneros, 487 S.W.3d at 242; Ex parte

Chambers, 898 S.W.2d at 262. Furthermore, the Texas Family Code requires that a motion for

enforcement and any resulting order of confinement must clearly state “the manner of the

respondent’s noncompliance.” Tex. Fam. Code Ann. §§ 157.002(a)(2), 157.166(a)(3). A contempt

order entered without personal service of the enforcement hearing, or without full and

unambiguous notice of the charges, is void. See In re Gabrielova, 527 S.W.3d at 295.

4
Mother’s petition does not dispute personal service, only that the allegations in the Motion for Enforcement were
ambiguous.

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Although we previously concluded that this is a hybrid contempt judgment, given the

punitive nature of criminal contempt and the liberty interest at stake, we conclude it is both

appropriate and equitable to apply the heightened criminal standard. See, e.g., Ex parte

Chambers, 898 S.W.2d at 261; In re Houston, 92 S.W.3d 870, 876–77 (Tex. App.—Houston [14th

Dist.] 2002, orig. proceeding) (applying the criminal standard to a hybrid contempt proceeding).

Finally, the contempt judgment must include specific language providing the contemnor with

notice of what actions are required to purge the contempt. In re Luther, 620 S.W.3d at 720 n. 13.

Mother does not contend that the language in the Contempt Order is insufficient.

Mother complains that the Contempt Order is void because (1) the Motion for Enforcement

did not provide full and unambiguous notice of the charges against her; (2) she had no knowledge

of the Forensic Imaging Order until after the deadline to comply; and (3) the underlying Forensic

Imaging Order lacked specificity to notify her of the means of compliance. We address each of her

complaints in turn.

A. The language in the Motion for Enforcement

In her first issue, Mother contends that the Motion for Enforcement failed to provide

adequate notice of the alleged contemptuous conduct. Notice is sufficient if it informs the alleged

contemnor of when, how, and by what means the underlying order was violated. See In re

Cisneros, 487 S.W.3d at 242. Father’s Motion for Enforcement alleged one violation of the

Forensic Imaging Order:

On or about September 14, 2023, [Mother] failed to “deliver the Devices to
Rasberry & Associates, 201 East Main, Suite 1616, El Paso, Texas 79901 for
forensic imaging on September 14, 2023 at 9:00 a.m.” Specifically, [Mother] failed
to deliver any Devices to Rasberry & Associates, 201 East Main, Suite 1616, El
Paso, Texas 79901 for forensic imaging on September 14, 2023 at 9:00 a.m.

12
This language is identical to the language used by the trial court in the underlying Forensic Imaging

Order. 5 Notably, Mother’s petition fails to identify any specific language in the Motion for

Enforcement that she contends is vague or ambiguous, as is required for this Court to conclude

that the Contempt Order is void.

Thus, to the extent Mother asks this Court to conclude that the Motion for Enforcement

provided inadequate notice of the alleged contempt, we disagree. We find the language in the

Motion for Enforcement to be both clear and unambiguous, providing Mother with adequate notice

of the conduct at issue—namely, her alleged failure to deliver any “Devices” to Rasberry &

Associates on September 14, 2023, as required by the Forensic Imaging Order. We overrule

Mother’s first issue.

B. Notice of the underlying Forensic Imaging Order

In Mother’s second issue, she argues that the Contempt Order is void because she did not

receive notice of the Forensic Imaging Order until after the deadline to comply. 6 Although not

expressly framed as such, we consider Mother’s assertion that she lacked timely notice of the

deadline as a challenge to the willfulness element of contempt. Rule 52.3(f) of the Texas Rules of

Appellate Procedure requires appellate courts to treat a statement of the issue as encompassing

5
Mother also raises, as her third issue, whether the language of the Forensic Imaging Order is ambiguous such that
she was not provided with adequate notice of what was required of her.
6
Father’s responses in this original proceeding urge this Court to deny relief because Mother provided an inaccurate
and incomplete record. See Tex. R. App. P. 52.7(a). It is clear from a comparison of the certified hearing transcripts
and various exhibits included in Mother’s petition and supplemental record that Mother’s mandamus record contains
inaccuracies. However, Mother is only required to provide this Court with a certified or sworn copy of “every
document that is material” to her claim for relief. Id. (a)(1). We find that the record provided is adequate to resolve
Mother’s first and second issues regarding notice as it contains file stamped copies of the relevant filings and certified
transcripts of the July 13, 2023 hearing on the motion to compel and the July 24, 2024 hearing on the Motion for
Enforcement. Mother’s record is likely insufficient to resolve her third issue, discussed below, which involves
discovery responses considered by the trial court to find her in contempt. Fortunately, Father submitted a supplemental
mandamus record containing corrected versions of the exhibits of which he complains as well as certified and sworn
copies of Mother’s discovery responses. Therefore, we decline to deny the petition on this ground.

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“every subsidiary question that is fairly included.” Tex. R. App. P. 52.3(f). Willfulness is a

subsidiary question inherent in any contempt finding and turns on whether the alleged contemnor

knew of the obligation and willfully failed to comply. Ex parte Chambers, 898 S.W.2d at 259

(“[O]ne must have knowledge or notice of an order which one is charged with violating before a

judgment of contempt will obtain.”). Thus, by raising lack of timely notice, the question of whether

the Contempt Order is void because Mother did not willfully violate the Forensic Imaging Order

is properly before this Court. Tex. R. App. P. 52.3(f).

Although criminal contempt requires proof beyond a reasonable doubt of the willfulness

element, in an original proceeding, an appellate court does not reweigh or assess the factual

sufficiency the evidence supporting the trial court’s contempt finding. In re Braden, 483 S.W.3d

at 662 (citing In re Long, 984 S.W.2d at 626–27). Instead, the reviewing court must determine

whether a contempt judgment is void because there is no evidence of contempt. In re D.L., 641

S.W.3d at 888; accord, In re Mayorga, 538 S.W.3d 174, 178 (Tex. App.—El Paso 2017, orig.

proceeding).

Contrary to Mother’s contention, the record contains evidence that Mother had knowledge

and notice of the Forensic Imaging Order before the deadline to comply. Thus, we cannot say that

the Contempt Order is void because her violation was not willful. First, Mother had knowledge

that the trial court granted Father’s motion to compel by virtue of her presence at the July 13, 2023

hearing on Father’s motion to compel, wherein the parties and the trial court explicitly

contemplated the production of Mother’s “Devices” for forensic analysis of metadata contained

within recordings.

Second, Mother attended the September 7, 2023 hearing via Zoom. She was present when

the trial court orally ordered her to produce “Devices” to Rasberry & Associates on

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September 14, 2023—something the trial court noted on the record during the hearing on the

Motion to Enforce, which occurred ten months later on July 24, 2024. Third, the Forensic Imaging

Order was electronically filed and served on Mother’s then-attorney on September 13, 2023,

at 4:32 p.m. Thus, the record supports that Mother had imputed knowledge of the requirements

through her attorney before the deadline the following morning. See, e.g., McMahan v.

Greenwood, 108 S.W.3d 467, 480–81 (Tex. App.—Houston [14th Dist.] 2003, pet. denied)

(“Knowledge acquired by an attorney during the existence of an attorney-client relationship, and

while acting in the scope of his or her authority, is imputed to the client.). Finally, although Mother

did not deliver “Devices” on the September 14, 2023 deadline, she did deliver an affidavit

swearing that she no longer possessed any “Devices,” seriously undermining her argument that

she lacked notice or adequate time to respond. Taken together, this evidence in the record tends to

support that Mother had notice of the Forensic Imaging Order before the compliance deadline. The

trial court, as fact finder, is the sole judge of a witness’s credibility, See, e.g., In re Mancha, 440

S.W.3d 158, 167 (Tex. App.—Houston [14th Dist.] 2013, orig. proceeding). And because we do

not reweigh the evidence—only determine whether there is no evidence of contempt—we cannot

say that the trial court abused its discretion or that the Contempt Order is void. In re Mayorga, 538

S.W.3d at 178. We overrule Mother’s second issue.

C. The language in the underlying Forensic Imaging Order

In her third and final issue, Mother urges us to find that the Contempt Order is void because

the language of the Forensic Imaging Order was too vague and ambiguous to support a contempt

finding. However, the substance of Mother’s argument focuses on her inability-to-comply defense

and additionally argues that the trial court improperly relied on her prior discovery responses to

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find her in contempt. None of these contentions support the conclusion that the Contempt Order is

void.

To be enforceable by contempt, the language of the order must provide the means of

compliance in “clear, specific, and unambiguous terms so that such person will readily know

exactly what duties or obligations are imposed upon him . . . .” In re Janson, 614 S.W.3d at 727

(quoting Ex parte Slavin, 412 S.W.2d at 44). The language of the Contempt Order repeats verbatim

the language of the Forensic Imaging Order, which we have already concluded is clear and

unambiguous in Mother’s first issue. Again, as in her first issue, Mother does not identify any

language in the Forensic Imaging Order that creates an ambiguity preventing her from

understanding the obligations and conditions of her compliance. 7 Therefore, we cannot find the

Forensic Imaging Order void on this ground.

Mother’s third issue, instead, is more properly construed as a factual challenge to her

inability-to-comply defense. Unlike in her second issue, where Mother asserted that lack of notice

of the Forensic Imaging Order negated the willfulness element of contempt, here Mother asserts

that her lack of possession of any “Devices” negates the willfulness element as she cannot willfully

fail to produce something that is no longer in her possession. Again, as this is a factual argument—

to hold the Contempt Order void, there must be no evidence of contempt in the record as we cannot

reweigh the evidence. In re Mayorga, 538 S.W.3d at 178.

7
In her response to Father’s reply, Mother states: “It is apparent from [Mother’s] petition, however, that her arguments
relate to the language of the orders—not to evidentiary questions extraneous thereto.” We disagree. As we understand
Mother’s petition, she does not identify or challenge the language of any of the orders at issue in this original
proceeding. Instead, she continually challenges the trial court’s consideration of her discovery responses, which is an
evidentiary issue that relates to her inability-to-comply defense.

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The record before us contains Mother’s testimony at the Motion for Enforcement that she

no longer possessed “Devices” containing “Recordings.” However, it also includes her sworn

supplemental answers to interrogatories, signed March 15, 2024, that directly conflict with her

testimony. 8 Interrogatory one asks:

State the time, place, manner of recording, circumstances recorded in each
recording, whether auditory or visual, and a description of the device used for such
recording, that you have taken of [Father] and/or the children since May 7, 2019,
and if the recording has been lost, has been destroyed or is not presently in your
possession, custody, or control, describe the recordings, the date of its loss,
destruction, purge, or separation from your possession, custody, or control, and the
circumstances.

In response, Mother lists 20 recordings. Of those, Mother responds that three recordings were

already produced by counsel, one is listed as a duplicate, and 16 are listed as “saved on USB and

dropbox.” The Forensic Imaging Order required Mother to submit for forensic imaging, “each and

every device of [Mother’s] devices that contain Recordings as defined hereinbelow, which include

but are not limited to [Mother’s] cell phones, cameras, video cameras and other device[s] capable

of recording video and/or sound (hereinafter the “Devices”) (emphasis added). As defined, the trial

court could reasonably infer from her admission that she retained access to at least two

“Devices”—a USB storage device and a dropbox connected computer or account. 9 The trial court

determines credibility and may resolve any inconsistencies in the testimony. In re Mancha, 440

S.W.3d at 167. Because evidence supports the trial court’s finding that “on the day of [the

July 24, 2024] hearing, [Mother] had the ability to comply with the prior [Forensic Imaging Order]

of the Court[,]” the Contempt Order is not void.

8
As previously stated, Mother did not provide this Court with her discovery responses. However, Father included
sworn copies in his supplemental mandamus record.
9
The Forensic Imaging Order also required mother to provide Rasberry “with any and all passcodes, passwords, or
other information necessary to access the “Devices.”

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As a final matter, Mother suggests, in this issue and across all her issues, that the trial court

impermissibly relied on her prior discovery responses as an independent basis for contempt. This

assertion is incorrect. Instead, the trial court appropriately considered those responses as relevant

evidence in evaluating whether Mother’s noncompliance was willful. We overrule Mother’s third

issue.

V1. CONCLUSION

For the reasons stated above, we deny Mother’s petition for writ of mandamus. Tex. R.

App. P. 52.8(a).

MARIA SALAS MENDOZA, Chief Justice

April 16, 2025

Before Salas Mendoza, C.J., Palafox and Soto, JJ.

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