Alexis Marie Ireland v. State

Opinion

ACCEPTED 03-14-00616-CR 4362870 THIRD COURT OF APPEALS AUSTIN, TEXAS 3/4/2015 9:57:44 AM JEFFREY D. KYLE CLERK CAUSE NO. 03-14-00616-CR

FILED IN 3rd COURT OF APPEALS _________________________________________________ AUSTIN, TEXAS 3/4/2015 9:57:44 AM IN THE COURT OF APPEALS JEFFREY D. KYLE FOR THE THIRD DISTRICT OF TEXAS Clerk AUSTIN DIVISION _________________________________________________

ALEXIS MARIE IRELAND § § v. § § STATE OF TEXAS §

_______________________________________________

APPELLANT’S MOTION FOR LEAVE TO FILE SUPPLEMENTAL BRIEF _______________________________________________

Justin Bradford Smith Texas Bar No. 24072348 Harrell, Stoebner, & Russell, P.C. 2106 Bird Creek Drive Temple, Texas 76502 Phone: (254) 771-1855 FAX: (254) 771-2082 Email: justin@templelawoffice.com

ATTORNEY FOR APPELLANT

Appellant’s Motion for Leave to File Supplemental Brief Page 1 Ireland v. State; Cause No. 03-14-00616-CR

TO THE HONORABLE COURT OF APPEALS:

COMES NOW, Appellant, ALEXIS MARIE IRELAND, who files this

Motion for Leave to File Supplemental Brief, and shows unto the Court as follows:

I.

Appellant’s brief was due on or before January 28, 2015.

II.

Appellant timely filed her brief, as did the State.

III.

After Appellant filed her brief, the State asked the district clerk to prepare

and file a supplemental clerk’s record containing the presentence investigation

report (PSI), which the district clerk did. The State also asked this Court to permit

the record to be supplemented with the PSI, and this Court granted the

supplementation. The State relies on the PSI in its brief. The PSI discloses,

however, that the restitution ordered in this case did not constitute that which was

unpaid or unrecovered for the original forgery; rather, the restitution relates to a

totally separate, uncharged offense.

A presentence investigation report (PSI) is not ordinarily part of the

appellate record. Brewer v. State, No. 1270-03, 2004 WL 3093224, at *4 (Tex.

Crim. App. May 19, 2004) (unpublished); see Tex. Code Crim. Proc. art. 42.12,

Appellant’s Motion for Leave to File Supplemental Brief Page 2 Ireland v. State; Cause No. 03-14-00616-CR

Sec. 9(j) (report is confidential). Until the State asked for permission to

supplement the record with the PSI, therefore, we (or at least this writer), did not

know that, as the State concedes, the restitution ordered in the judgment was not

for the offense for which Appellant was charged. See State’s Brief, at 10-11.

Rather, it appeared that the restitution included in the written judgment ($1,922.57)

constituted the portion of the $7,475.41 originally charged that was still owed or

not recovered.

Now it is clear that the trial court ordered Appellant to pay restitution for a

crime for which Appellant was neither charged nor convicted. While Appellant

agrees with the State that this was (arguably) proper under Gutierrez-Rodriguez v.

State, 44 S.W.3d 21 (Tex. Crim. App. 2014) in the original order of deferred

adjudication that granted Appellant community supervision, it is not proper now

that Appellant has been sentenced. Rather, since restitution “may be ordered only

to a victim of an offense for which the defendant is charged”, Hanna v. State, 426

S.W.3d 87, 91 (Tex. Crim. App. 2014), Appellant cannot be ordered to pay

restitution as a part of her sentence to an entity who is not a victim of this forgery

for which Appellant was charged. See Campbell v. State, 5 S.W.3d 693, 697 (Tex.

Crim. App. 1999) (“Another limit on the authority of a trial court to order

restitution is that a trial court may not order restitution to any but the victim or

Appellant’s Motion for Leave to File Supplemental Brief Page 3 Ireland v. State; Cause No. 03-14-00616-CR

victims of the offense with which the offender is charged. Martin v. State, 874

S.W.2d 674, 679–80 (Tex.Cr.App.1994) (holding that a restitution order may not

compensate all victims of a general scheme to defraud when the defendant was

only charged with defrauding one investor). Nor may a trial court, without the

agreement of the defendant, order restitution to other victims unless their losses

have been adjudicated.”).

In these circumstances, Appellant’s sentence is void because it is

unauthorized, and a void sentence may be raised for the first time on appeal.

Jordan v. State, 979 S.W.2d 75, 77 (Tex. App.—Austin 1998); Tex. Code Crim.

Proc. art. 42.037(a) (defendant “convicted of an offense” may be ordered to pay

restitution to “any victim of the offense”) (emphasis added); Hanna, 426 S.W.3d at

91 (restitution “may be ordered only to a victim of an offense for which the

defendant is charged”).

In light of these facts, it is proper for the Court to consider this additional

issue, and it would also be proper to afford the State an opportunity to respond.

Tex. R. App. P. 38.7 (“A brief may be amended or supplemented whenever justice

requires, on whatever reasonable terms the court may prescribe.”). Certainly the

possibility that Appellant has received a void sentence is an instance of “justice

requir[ing]” a supplemental brief. Therefore, Appellant is filing this supplemental

Appellant’s Motion for Leave to File Supplemental Brief Page 4 Ireland v. State; Cause No. 03-14-00616-CR

brief raising an additional issue, along with a motion for leave to file the same, and

asks the Court both to consider this new issue and to allow the State a chance to

respond.1

IV.

Appellant asks the Court to accept this supplemental brief for filing, and to

afford the State an opportunity to respond, whether thirty days or another deadline

of the Court’s choosing.

PRAYER

WHEREFORE, PREMISES CONSIDERED, Appellant asks this Court

grant this motion, accept Appellant’s supplemental brief for filing, and give the

State an adequate opportunity to respond.

1 It seemed most straightforward to draft a separate brief to supplement Appellant’s initial brief, rather than file an amended brief including all three issues. In light of the fact that Appellant, time permitting, may need to file a reply brief as well (in case the Court does not allow this supplemental brief, does not agree with Appellant’s arguments, or Appellant turns out to be wrong), Appellant asks this Court to accept this supplemental brief as is rather than direct Appellant to file an amended brief incorporating all three issues into one document.

Appellant’s Motion for Leave to File Supplemental Brief Page 5 Ireland v. State; Cause No. 03-14-00616-CR

Respectfully submitted:

/s/ Justin Bradford Smith Justin Bradford Smith Texas Bar No. 24072348

Harrell, Stoebner, & Russell, P.C. 2106 Bird Creek Drive Temple, Texas 76502 Phone: (254) 771-1855 FAX: (254) 771-2082 Email: justin@templelawoffice.com

CERTIFICATE OF SERVICE

I hereby certify that, on March 4, 2015, a true and correct copy of the

Appellant’s Motion for Leave to File Supplemental Brief was provided to counsel

below via eservice:

Bob Odom Bell County District Attorney’s Office P.O. Box 540 Belton, Texas 76513 Email: DistrictAttorney@co.bell.tx.us Attorney for the State

/s/ Justin Bradford Smith Justin Bradford Smith

Appellant’s Motion for Leave to File Supplemental Brief Page 6 Ireland v. State; Cause No. 03-14-00616-CR