Monica S. Downs v. State ( 1998 )

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

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NO. 03-97-00361-CR NO. 03-97-00362-CR

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Monica S. Downs, Appellant

v.

The State of Texas, Appellee

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FROM THE DISTRICT COURT OF LAMPASAS COUNTY, 27TH JUDICIAL DISTRICT NOS. 6205 & 6206, HONORABLE C. W. DUNCAN, JUDGE PRESIDING

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After finding that Monica S. Downs violated several conditions of her deferred adjudication probation, the trial court revoked her probation and adjudicated her guilty of injury to a child and aggravated assault. ⁽¹⁾ The court assessed punishment at two years in prison for each offense. Though Downs filed a motion for new trial and notice of appeal, her appointed counsel has filed an Anders brief in which he states that he has found no merit in her appeal. See Anders v. California, 386 U.S. 738 (1967); High v. State, 573 S.W.2d 807 (Tex. Crim. App. 1978). Downs has not filed her own brief. We agree that the appeal has no merit and will affirm the trial-court judgment.

This Court previously considered Downs's challenge to the voluntariness of her 1993 no-contest plea to the indictments for aggravated assault and injury to a child. Downs v. State, Nos. 3-93-00634-CR & 03-94-00034-CR (Tex. App.--Austin, June 29, 1994, pet. ref'd) (not designated for publication). After considering stipulated evidence, the district court found the evidence substantiated her guilt, deferred adjudication of guilt, and placed her on probation for seven years. This Court found there was controverted evidence regarding whether she had so misunderstood her plea agreement that her plea was involuntary. Accordingly, we held the trial court did not abuse its discretion in denying her motion for new trial.

After over a year on probation, Downs received a travel permit allowing her to travel to Ohio. She left in January 1995. The permit required her to return to Lampasas County by March 9, 1995. She reported to an Ohio probation officer until March 1995, and then communicated by mail with the Texas probation office for a few weeks, then stopped.

Downs testified regarding the alleged probation violations. She admitted not attending the required Lifeskills class. She said the travel pass she received was not filled out with a March 9 return date. She thought she was on probation for seven months, not seven years. She also testified that she missed payments because she was overwhelmed by medical bills for her grandmother and children; she also testified that her ex-husband was far behind on his child-support payments. She alleged she made some of the payments required by her probation. She also claimed she took the necessary HIV/AIDS tests. She described her self-improvement efforts, including working seventy hours a week, earning a nursing certificate, and signing up for the Naval Reserves. She had not been able to retrieve from Ohio the documentary proof for some of her allegations because she had been incarcerated, her children were in foster care, and illnesses prevented her mother and grandmother from finding the documents. She believed that her children would be put up for adoption if she was incarcerated.

After the hearing on the motion to revoke and to adjudicate, the trial court found that Downs violated conditions of her probation. In the injury-to-a-child case, the court found she failed to report weekly to the probation officer (November 1995-March 1997), to reside in Lampasas County, to stay in Texas (she was living in Ohio), and to undergo an HIV/AIDS test. In the aggravated assault case, the court found all those violations plus others. It found she failed to attend a Lifeskills class and failed to pay her class fee, restitution to the victim, a supervision administration fee, and her fine. The court adjudicated her guilty and sentenced her to two years in prison on each case.

Downs pled true to at least one alleged probation violation. No appeal may be taken from the decision to adjudicate. Tex. Code Crim. Proc. Ann. art. 42.12, § 5(b) (West Supp. 1998). The punishment does not exceed the allowable range. See Tex. Penal Code Ann. § 12.33 (West 1994) (punishment range for second-degree felony is two to twenty years in prison); see also Tex. Penal Code Ann. §§ 22.02 & 22.04 (West 1994) (defining aggravated assault and injury to a child as second-degree felonies).

Downs's attorney stated that, after reviewing the record, he found no valid grounds for appeal. On January 8, 1998, her attorney notified her of his conclusion, mailed her a copy of his brief, and notified her of her right to file her own brief. She has not filed a brief.

We conclude that Downs's attorney correctly concluded that Downs has no valid grounds on which to base an appeal. We affirm the trial-court judgment.

Mack Kidd, Justice

Before Justices Powers, Kidd and B. A. Smith

Affirmed

Filed: July 2, 1998

Do Not Publish

1. Appellant testified that after her divorce she reverted to her previous last name of Foley. Because the trial court never adopted that change, we will also refer to her by the name used in the proceedings below.

new trial and notice of appeal, her appointed counsel has filed an Anders brief in which he states that he has found no merit in her appeal. See Anders v. California, 386 U.S. 738 (1967); High v. State, 573 S.W.2d 807 (Tex. Crim. App. 1978). Downs has not filed her own brief. We agree that the appeal has no merit and will affirm the trial-court judgment.

This Court previously considered Downs's challenge to the voluntariness of her 1993 no-contest plea to the indictments for aggravated assault and injury to a child. Downs v. State, Nos. 3-93-00634-CR & 03-94-00034-CR (Tex. App.--Austin, June 29, 1994, pet. ref'd) (not designated for publication). After considering stipulated evidence, the district court found the evidence substantiated her guilt, deferred adjudication of guilt, and placed her on probation for seven years. This Court found there was controverted evidence regarding whether she had so misunderstood her plea agreement that her plea was involuntary. Accordingly, we held the trial court did not abuse its discretion in denying her motion for new trial.

After over a year on probation, Downs received a travel permit allowing her to travel to Ohio. She left in January 1995. The permit required her to return to Lampasas County by March 9, 1995. She reported to an Ohio probation officer until March 1995, and then communicated by mail with the Texas probation office for a few weeks, then stopped.

Downs testified regarding the alleged probation violations. She admitted not attending the required Lifeskills class. She said the travel pass she received was not filled out with a March 9 return date. She thought she was on probation for seven months, not seven years. She also testified that she missed payments because she was overwhelmed by medical bills for her grandmother and children; she also testified that her ex-husband was far behind on his child-support payments. She alleged she made some of the payments required by her probation. She also claimed she took the necessary HIV/AIDS tests. She described her self-improvement efforts, including working seventy hours a week, earning a nursing certificate, and signing up for the Naval Reserves. She had not been able to retrieve from Ohio the documentary proof for some of her allegations because she had been incarcerated, her children were in foster care, and illnesses prevented her mother and grandmother from finding the documents. She believed that her children would be put up for adoption if she was incarcerated.

After the hearing on the motion to revoke and to adjudicate, the trial court found that Downs violated conditions of her probation. In the injury-to-a-child case, the court found she failed to report weekly to the probation officer (November 1995-March 1997), to reside in Lampasas County, to stay in Texas (she was living in Ohio), and to undergo an HIV/AIDS test. In the aggravated assault case, the court found all those violations plus others. It found she failed to attend a Lifeskills class and failed to pay her class fee, restitution to the victim, a supervision administrati