in Re: Mondrea Scott ( 2005 )

6-96-028-CV Long Trusts v. Dowd

In The

Court of Appeals

Sixth Appellate District of Texas at Texarkana

______________________________

No. 06-05-00026-CV

______________________________

IN RE:

MONDREA SCOTT

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Original Mandamus Proceeding

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Before Morriss, C.J., Ross and Carter, JJ.

Memorandum Opinion by Justice Ross

MEMORANDUM OPINION

          Mondrea Scott has filed a petition for writ of mandamus, seeking to compel a district court in Bowie County to dismiss with prejudice an indictment charging Scott with aggravated robbery. Scott is incarcerated in the Arkansas Department of Corrections, with a projected release date of February 2017. She further styles her petition as a request to order the trial court to issue a writ of prohibition and prevent further proceedings against her. The thrust of Scott's petition seems to be reliance on the Interstate Agreement on Detainers Act (see Tex. Code Crim. Proc. Ann. art. 51.14 (Vernon 1979)).

          This is Scott's second petition for writ of mandamus in as many months. On January 12, 2005, this Court denied her petition for mandamus relief, where Scott wholly failed to comply with the requisites of Tex. R. App. P. 52.3. In re Scott, No. 06-05-00002-CV, 2005 Tex. App. LEXIS 180 (Tex. App.—Texarkana Jan. 12, 2005, orig. proceeding) (mem. op.) (not designated for publication). The petitions filed with the Court on January 5, 2005 (bearing the 06-05-00002-CV cause number), and on January 25, 2005 (the instant cause), are identical. As stated above, we denied relief in Scott's previous request due to her failure to comply with Tex. R. App. P. 52.3. She has now supplied this Court with a copy of the indictment (dated March 23, 2000, and charging Scott with aggravated robbery); a copy of her motion for speedy trial; documents pertaining to the detainer placed on her; and a motion to dismiss citing an Arkansas rule and statute.

          The State filed a response reminding this Court of the action we took in cause number 06-05-00002-CV and stating that Scott still has not complied with Tex. R. App. P. 52.3. The State did not address Scott's claim to relief under the Interstate Agreement on Detainers Act.

          Scott still has not filed her petition in accordance with the applicable Rules of Appellate Procedure and has not sufficiently analyzed her situation and briefed this Court on why she is entitled to relief.

          Accordingly, we deny Scott's petition for writ of mandamus.

 

                                                                           Donald R. Ross

                                                                           Justice

Date Submitted:      February 3, 2005

Date Decided:         February 4, 2005

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In The

  Court of Appeals

                        Sixth Appellate District of Texas at Texarkana

 

                                                ______________________________

 

                                                             No. 06-11-00019-CR

                                                ______________________________

 

 

                              DALSON LESCHALLE JAMES, Appellant

 

                                                                V.

 

                                     THE STATE OF TEXAS, Appellee

 

 

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                                       On Appeal from the 114th Judicial District Court

                                                             Smith County, Texas

                                                       Trial Court No. 114-0913-10

 

                                                                                                  

 

 

 

                                          Before Morriss, C.J., Carter and Moseley, JJ.

                                        Memorandum Opinion by Chief Justice Morriss

                                                      MEMORANDUM OPINION

 

Dalson Leschalle James received a probated sentence in Smith County^[1] for possession of a controlled substance and was placed on community supervision.  Among the conditions of community supervision, James was ordered to reimburse the Texas Department of Public Safety for “$140 for the testing of the drugs in this case.”  Now, on the State’s motion, the trial court has revoked James’ community supervision, because James possessed marihuana, used or consumed marihuana, used or consumed opiates, and possessed opiates.  At the revocation hearing, James pled “true” to the State’s allegations. The trial court revoked James’ community supervision and assessed his punishment at two years’ confinement.

In two points of error on appeal, James attacks only that part of the trial court’s original order^[2] placing him on community supervision that ordered James to pay restitution.

            We affirm the trial court’s judgment because James failed to timely appeal any issue concerning restitution.

            Issues related to the original conviction are not generally cognizable on an appeal from the revocation of community supervision.  Gossett v. State, 282 S.W.2d 59, 62 (1955); King v. State, 161 S.W.3d 264, 266 (Tex. App.—Texarkana 2005, pet. ref’d); see Manuel v. State, 994 S.W.2d 658, 661–62 (Tex. Crim. App. 1999) (applying general rule to deferred adjudication).  James does not allege that any exception to the general rule applies in this case. See Nix v. State, 65 S.W.3d 664, 667 (Tex. Crim. App. 2001); cf. Jordan v. State, 54 S.W.3d 783, 785 (Tex. Crim. App. 2001). “An appeal from an order revoking community supervision is limited to the propriety of the revocation.”  Stafford v. State, 63 S.W.3d 502, 511 (Tex. App.—Texarkana 2001, pet. ref’d).  The time for appeal begins when the sentence is imposed or suspended in open court.^[3]  Coffey v. State, 979 S.W.2d 326, 328 (Tex. Crim. App. 1998) (unprobated fine properly included in judgment revoking community supervision).

            Any error in the restitution order should have been appealed when James was convicted and placed on community supervision.  At the time of the original judgment and sentencing, James failed to object to any restitution error or file a motion for new trial or an appeal from that judgment.  Thus, this appeal fails.

            We affirm the judgment of the trial court.

 

 

                                                                                    Josh R. Morriss, III

                                                                                    Chief Justice

 

Date Submitted:          July 11, 2011

Date Decided:             July 12, 2011

 

Do Not Publish

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^[1]This case was transferred to this Court from the Tyler Court of Appeals as part of the Texas Supreme Court’s docket equalization program.  Tex. Gov’t Code Ann. § 73.001 (West 2005). We are not aware of any conflict between the precedent of the Tyler Court and the precedent of this Court on any issue relevant in this appeal.  See Tex. R. App. P. 41.3.

 

^[2]The trial court imposed the restitution orders in the original judgment finding James was guilty of possession of a controlled substance, accepting the plea bargain and recommendations, and placing James on community supervision.  The payment of restitution was included as a condition of James’ community supervision, wherein he was to pay $10.00 per month, beginning in November 2010.

^[3]Further, the Tyler Court of Appeals has held that an error in a restitution order does not result in an illegal sentence. See Grindele v. State, No. 12–06–00168–CR, 2007 WL 1869323 (Tex. App.—Tyler June 29, 2007, pet. ref’d) (mem.op., not designated for publication).