Donald DeWayne Freier v. State

• Court: Court of Appeals of Texas
• Decided: September 15, 1999
• Docket: 10-99-00099-CR
• Status: Published

Opinion

Donald DeWayne Freier v. State

IN THE

TENTH COURT OF APPEALS

No. 10-99-098-CR

&

No. 10-99-099-CR

     DONALD DeWAYNE FREIER,

                                                                         Appellant

     v.

     THE STATE OF TEXAS,

                                                                         Appellee

From the Criminal District Court No. 3

Tarrant County, Texas

Trial Court Nos. 0692642D & 0692647D

O P I N I O N

      Appellant Freier appeals two separate convictions for sexual assault of a child under seventeen years of age. Both cases were tried together. There is one reporter's record and the briefs in each case are identical.

      On January 21, 1999, Appellant judicially confessed and entered guilty pleas to the offense charged in each indictment.

      On March 8, 1999, the court, after reviewing a pre-sentence investigation report and hearing testimony, found Appellant guilty in both cases and sentenced him in each case to twenty years in the Institutional Division of the Texas Department of Criminal Justice.

      Appellant filed a timely notice of appeal. Appellant's court-appointed counsel on appeal has filed a brief in each case in which he details the evidence, and in which he concludes that the record contains no reversible error, and that the appeal in each is without merit and is frivolous.

      Appellant's briefs meet the requirements of Anders v. California, 386 U.S. 738 (1967) and High v. State, 573 S.W.2d 907 (Tex. Crim. App. 1978), by presenting a professional evaluation of the record demonstrating why there are no arguable grounds for reversal.

      Appellant's briefs point out that Appellant's judicial confession and plea of guilty in each case admits all facts charged in the indictments, and that all non-jurisdictional defects were waived. Shaldhorn v. State, 732 S.W.2d 636 (Tex. Crim. App. 1987. Counsel further states that there is nothing in the record to support a claim of ineffective assistance of counsel. Ex parte McWilliams, 634 S.W.2d 815 (Tex. Crim. App. 1982). Appellant's counsel further notes that there is nothing to indicate the pleas were not voluntarily and knowingly entered by Appellant as open pleas. Brown v. State, 943 S.W.2d 35 (Tex. Crim. App. 1997).

      The judge assessed punishment within the statutory range of punishment. The judgments are regular on their face and contain all requirements set out in the Texas Code of Criminal Procedure, article 42.01.

      Appellant's briefs certify that copies were served on Appellant on June 2, 1999. Appellant has filed no pro se briefs and no extension of time in which to file same has been requested.

      We have examined both briefs and agree that both appeals are frivolous and without merit, and we find nothing in the record that might arguably support an appeal.

      Appellant's appointed counsel has further made a request and motion to withdraw as attorney in each case. Those motions are granted.

      Judgments in both cases are affirmed.

                                                                         FRANK G. McDONALD

                                                                         Chief Justice (Retired)

Before Chief Justice Davis,

      Justice Vance and

      Chief Justice McDonald (Retired)

Affirmed

Opinion delivered and filed September 15, 1999

Do not publish

ept that a support order may be modified only as to obligations accruing after the earlier of the date of service of citation or an appearance on the motion to modify . . . .

(Emphasis added).

      Walters argues that because the divorce decree did not "provide[] for the support of a child," her motion to modify required the court to make an initial determination of child support. We disagree for two reasons. First, the divorce decree expressly provides for the support of the children. In the original proceeding the court found that the agreement of the parties, containing provisions for support of the children, was in the best interest of the children and ordered that no child support be paid by either party. Second, Walters pleading supports a modification only on the basis of a material and substantial change of circumstances. As a result, the trial court properly applied section 14.08(c)(2) to Walters' motion to modify.

      In determining whether a modification in child support payments is appropriate, the trial court should examine the circumstances of the children and parents at the time the prior decree was rendered in relation to the circumstances existing at the time the prior order is sought to be modified. Walters called three witnesses and introduced copies of Taylor's 1989 and 1990 tax returns.

      Walters first witness was Marc L. Irvin, a trust officer in the Personal Trust Administration Division of Texas Commerce Bank. On direct examination Irvin testified only that he administered the testamentary trust of James Baldwin, Walters' father, and that Walters' mother, Margie Carpenter, was the trustee. On cross-examination, Irvin testified that he routinely makes distributions from the trust of $4000 per month to Walters. At the direction of the trustee, Irvin occasionally made additional distributions of trust assets to Walters. Without the trust records he was unable to accurately estimate the total amount of additional disbursements. According to Irvin, however, Walters very well could have received in excess of $120,000 from the trust during the past year.

      Walters then called Taylor as a witness. He testified that, in addition to the child support provisions contained in the divorce decree, the children continued to live in the home in which he retained an interest and he provided health insurance coverage for the children. Taylor worked for Zerod Company Realtors at the time of the divorce and earned approximately $22,500 in 1984. He worked for Pioneer Plastics from March 26, 1987, until October 8, 1990. His 1989 income tax return reflected an adjusted gross income of $31,268. Between October 1990 and October 1991 he worked briefly in California. His 1990 income tax return reflected an adjusted gross income of $26,142. According to Taylor, at the time of the hearing he was training as a Farmers Insurance agent, and his income since October 18 had been zero.

      Of the four children, only two were under the age of eighteen at the time of the hearing. All four children had attended a private elementary and secondary school, and one was now attending Southern Methodist University. Walters testified that in 1984 the total cost for enrolling four children at St. John's was approximately $15,000. Tuition for the two children enrolled in 1991 was approximately $13,000. According to Walters, at the time of the divorce she received a "small amount from the antique furnishings" that she was selling with her sister, but was not earning any income at the time of the hearing. She was assisting her current husband in his work and was receiving no salary.

      Although the trial judge had repeatedly admonished Walters' counsel that he had heard no evidence of a material and substantial change of circumstances, Walters rested at the conclusion of her testimony. Because there is no evidence that the circumstances of the children or a person affected by the divorce decree had materially and substantially changed since the date of the divorce, we overrule points one through seven.

      In points eight and nine Walters contends that the court erred in failing to make findings of fact and conclusions of law pursuant to section 14.057 of the Family Code and Rules 296 and 297 of the Rules of Civil Procedure. Walters, however, failed to request the findings specified by section 14.057 of the Family Code. Furthermore, when a trial court grants a motion for judgment in a non-jury trial after the plaintiff rests, and there is no evidence to support an element of the plaintiff's case, the court is not authorized to make findings of fact. Indeed, with no evidence of a material or substantial change in the record, the only finding or conclusion the court could have made is that the Walters' motion was entirely without merit. This the court did in the written order denying the motion to modify. We overrule points of error eight and nine.

      We affirm the order of the trial court denying Walters' motion to modify. Finally, Taylor requests damages for delay as authorized by Rule 84 of the Rules of Appellate Procedure. Because Walters has taken this appeal for delay and without sufficient cause, we award Taylor $1166, which is four times the total taxable costs, as damages against Walters.

                                                                                 BOBBY L. CUMMINGS

                                                                                 Justice

Before Justice Cummings and

          Justice Vance

          (Chief Justice Thomas not participating)

Opinion delivered and filed