Tammy Elisa Alexander v. State ( 2008 )

IN THE
TENTH COURT OF APPEALS
No. 10-07-00090-CR
TAMMY ELISA ALEXANDER,
Appellant
v.
THE STATE OF TEXAS,
Appellee
From the 54th District Court
McLennan County, Texas
Trial Court No. 2002-164-C2
MEMORANDUM OPINION
Tammy Elisa Alexander pleaded “true” to fourteen of seventeen allegations in
the State’s motion to revoke her community supervision for injury to a child. After a
hearing, the court revoked her community supervision and imposed the original
sentence of ten years’ imprisonment. Alexander’s appellate counsel filed an Anders
brief contending that the appeal presents no issues of arguable merit, and Alexander
has filed a pro se response. We will affirm.
Background
Alexander pleaded guilty to three counts of injury to a child and was placed on
community supervision. One of the conditions of her community supervision was that
she have no contact with her four children other than in an approved therapeutic
setting. The terms of community supervision were amended three years later to include
a requirement that she participate in supervised family therapy with one of her
daughters, J.A. The State’s first amended motion to revoke alleges seventeen violations,
including: moving without permission, failure to notify of new address, consumption of
alcohol, failure to report, violation of curfew, failure to remain in the county, having
contact with her children, and several financial violations.
At the hearing, Alexander pleaded true to allegations that she: failed to notify her
community supervision officer of her new address, consumed alcohol, failed to report,
violated her curfew, failed to remain in the county, and failed to meet her financial
obligations. Her community supervision officer testified that Alexander moved to her
mother’s home in Marlin at one point without permission and in violation of the
condition that she not leave McLennan County. She conceded that Alexander claimed
she could not find anyone else to live with in McLennan County after living in two
other homes. She also testified that Alexander reported on one occasion after having
consumed alcoholic beverages and that Alexander initially denied that she had done so
but eventually admitted it. She also testified to Alexander’s financial violations.
Two witnesses testified that Alexander came to a Waco church to get food for her
family and that her husband and children briefly interacted with her while she was
Alexander v. State Page 2
there. She stated in her application for assistance that her husband and she were living
in a home with their children.
Alexander’s husband testified that she had not lived in the home since being
placed on community supervision. He explained that he felt as though she had made
good progress in her counseling sessions and that the prohibition against her having
contact with the children should be ended.
Alexander testified in her own defense. She denied having any contact with the
children other than that brief encounter at the church. She moved to Marlin because she
could not find anyone else to live with in Waco and that she never intended to evade
her reporting requirements. She explained that she was traveling to Temple on a
regular basis for medical treatments at a hospital but was told by her community
supervision officer that her community supervision could not be transferred any closer
to Bell County (such as in Marlin). She admitted that she consumed several wine
coolers on one occasion after her godbrother passed away but insisted that she advised
her community supervision officer that she had done so “when I walked in the office.”
She explained that she had violated her curfew because of work responsibilities.
Alexander explained how she had worked very hard to meet the reporting
requirements for a related CPS proceeding as well as for her community supervision
while having to go to Temple on a regular basis for medical care, including two
hospitalizations. She testified that, after the motion to revoke was filed, she stopped
reporting on advice of counsel.
Alexander v. State Page 3
In summations, Alexander asked the court to allow her to remain on community
supervision. The State reminded the court of the injuries sustained by the children, for
which Alexander had pleaded guilty, and urged the court to revoke her community
supervision.
The Anders Brief
Counsel’s brief meets the requirements of Anders by presenting a professional
evaluation of the record and detailing why there are no arguable grounds for reversal.
See Currie v. State, 516 S.W.2d 684, 684 (Tex. Crim. App. 1974); Gearhart v. State, 122
S.W.3d 459, 464 (Tex. App.—Corpus Christi 2003, pet. ref’d); Sowels v. State, 45 S.W.3d
690, 691 (Tex. App.—Waco 2001, no pet.), overruled on other grounds by Meza v. State, 206
S.W.3d 684, 689 (Tex. Crim. App. 2006). After an independent review of the record, we
agree with counsel’s conclusion. See Bledsoe v. State, 178 S.W.3d 824, 826-27 (Tex. Crim.
App. 2005); accord Villanueva v. State, 209 S.W.3d 239, 242-43 (Tex. App.—Waco 2006, no
pet.).
A plea of true to even one allegation is sufficient to revoke community
supervision. Atchison v. State, 124 S.W.3d 755, 758 n.4 (Tex. App.—Austin 2003, pet.
ref’d). Here, Alexander not only pleaded true to several allegations but also testified
that she had committed several violations while trying to explain why. Therefore, the
court did not abuse its discretion by revoking her community supervision.
Alexander v. State Page 4
Pro Se Response
Alexander essentially presents two complaints in her pro se response. First, she
complains that she received ineffective assistance of trial counsel because her appointed
attorney failed to call several witnesses. Alexander in particular notes that trial counsel
failed to call witnesses to testify about the fact that her daughter was raped and
impregnated while in foster care or about the encounter with her husband and children
at the church.
To establish a claim for ineffective assistance of counsel, Alexander must show
that: (1) counsel’s performance was deficient; and (2) there is a reasonable probability
the outcome would have been different but for counsel’s deficient performance. Ex
parte Ellis, 233 S.W.3d 324, 330 (Tex. Crim. App. 2007). Here, even if we disregard the
finding that Alexander had contact with her children, the remaining testimony and her
plea of true support the court’s other findings. Alexander herself testified that her
daughter was raped and impregnated while in foster care. But even if this is true, it has
no bearing on whether she committed the other violations. Therefore, we cannot say
that there is a reasonable probability the outcome would have been different but for
counsel’s deficient performance. See id.
Alexander has also advised the Court on numerous occasions that she is
dissatisfied with her appellate counsel and wholly disagrees with his assertion that her
appeal is frivolous. We construe this as a claim that Alexander has received ineffective
assistance of appellate counsel.
Alexander v. State Page 5
A similar standard exists for establishing ineffective assistance of counsel on
appeal. The appellant must show that: (1) counsel’s performance was deficient; and (2)
there is a reasonable probability she “would have prevailed on appeal” but for
counsel’s deficient performance. Ex parte Santana, 227 S.W.3d 700, 704-05 (Tex. Crim.
App. 2007).
Alexander contends that her appellate counsel advised her from the beginning
that her appeal was frivolous, that counsel “didn’t take into consideration anything on
my behalf,” and that counsel doesn’t know what the appeal is about. However,
Alexander does not specify what she believes counsel should have done differently in
preparing her appellant’s brief. And in view of the trial record, we cannot agree that
there is any reasonable probability that she “would have prevailed on appeal” if
counsel had presented some of the issues she discusses in her pro se response. See id.
Accordingly, we cannot agree with Alexander’s complaints regarding the
performance of her trial and appellate attorneys.
Conclusion
We affirm the judgment. Pursuant to Rule of Appellate Procedure 48.4, counsel
must send Alexander a copy of our decision by certified mail, return receipt requested,
at Alexander’s last known address. TEX. R. APP. P. 48.4. Counsel must also notify
Alexander of her right to file a pro se petition for discretionary review.1 Id.; see also Ex
1
Ordinarily, we would grant counsel’s motion to withdraw, effective upon counsel’s compliance
with Rule 48.4 as evidenced by “a letter [to this Court] certifying his compliance with this rule.” See TEX.
R. APP. P. 48.4; see also Meza v. State, 206 S.W.3d 684, 689 & n.23 (Tex. Crim. App. 2006); Villanueva v. State,
209 S.W.3d 239, 249 (Tex. App.—Waco 2006, no pet.). Here, however, counsel followed the procedures
previously outlined by this Court in Sowels v. State and filed his motion to withdraw with the trial court.
Alexander v. State Page 6
parte Owens, 206 S.W.3d 670, 673-74 (Tex. Crim. App. 2006); Villanueva, 209 S.W.3d at
249. Finally, counsel must provide this Court “a letter certifying his compliance with
[Rule 48.4].” See TEX. R. APP. P. 48.4.
FELIPE REYNA
Justice
Before Chief Justice Gray,
Justice Vance, and
Justice Reyna
(Chief Justice Gray concurs in the judgment to the extent it affirms Alexander’s
conviction. See Villanueva v. State, 209 S.W.3d 239, 249 (Tex. App.—Waco 2006, no pet.)
(Gray, C.J., concurring). A separate opinion will not issue.)
Affirmed
Opinion delivered and filed October 8, 2008
Do not publish
[CR25]
See Sowels v. State, 45 S.W.3d 690, 692 (Tex. App.—Waco 2001, no pet.), overruled in part by Meza, 206
S.W.3d at 689. The Court of Criminal Appeals has overruled this aspect of Sowels, and this Court has
“jurisdication and authority to grant a motion to withdraw that accompanies an Anders brief” if the Court
determines that counsel has satisfied his professional obligations and that the appeal is frivolous. Meza,
206 S.W.3d at 689.
Alexander v. State Page 7