Alexis Marie Ireland v. State

Court of Appeals of Texas·Decided March 9, 2015·No. 03-14-00616-CR·Published

Opinion

ACCEPTED

03-14-00616-CR

4362710

THIRD COURT OF APPEALS

AUSTIN, TEXAS

3/4/2015 9:52:21 AM

JEFFREY D. KYLE

CLERK

CAUSE NO. 03-14-00616-CR

FILED IN

3rd COURT OF APPEALS

AUSTIN, TEXAS

IN THE COURT OF APPEALS 3/9/2015 9:52:21 AM FOR THE THIRD DISTRICT OF TEXAS JEFFREY D. KYLE AUSTIN DIVISION Clerk

ALEXIS MARIE IRELAND § §

v. § §

STATE OF TEXAS §

APPELLANT’S 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

ORAL ARGUMENT NOT REQUESTED

IDENTITY OF PARTIES AND COUNSEL

Appellant Alexis Marie Ireland

Appellant’s Counsel Justin Bradford Smith Harrell, Stoebner, & Russell, P.C.

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

Appellant’s Trial Counsel Jack Holmes 1610 South 31st Street, Suite 102, PMB 235 Temple, TX 76504

Appellee State of Texas

Appellee’s Trial Counsel Leslie McWilliams Bell County District Attorney P.O. Box 540 Belton, Texas 76513 Telephone: (254) 933-5215 Fax: (254) 933-5238

Appellee’s Appellate Counsel Bob Odom Bell County District Attorney’s Office Email: DistrictAttorney@co.bell.tx.us

TABLE OF CONTENTS

Identity of Parties and Counsel…………………………..………………………... 2 Table of Contents……………………………………….…………………………..3 Index of Authorities…………………………………….………………………..4-5 Justification for Supplemental Brief…………………………...………………...6-8 Supplemental Issue Presented….…...…....…………………….……….………….8

ISSUE THREE: The restitution ordered in the judgment must be deleted because it constitutes a void sentence since it orders restitution for a victim of an offense for which Appellant was not charged or convicted.……………….……………8

Supplemental Statement of Facts…….……………..…………………………....8-9 Summary of the Argument……………………………..…………………….....9-11

ISSUE THREE: The restitution ordered in the judgment must be deleted because it constitutes a void sentence since it orders restitution for a victim of an offense for which Appellant was not charged or convicted………………….………….9

Argument…………………………………………………………………........12-19 Standard of Review…………………….…...…………………………………….12 Law and Analysis……………..…………………………..…………………...12-19 Conclusion………………………………………………………………………...19 Prayer…………………..…………………………………………………….........20 Certificate of Compliance………………………………………………………....20 Certificate of Service……………………………………………………………...21

INDEX OF AUTHORITIES

Texas Court of Criminal Appeals:

Brewer v. State, No. 1270-03, 2004 WL 3093224 (Tex. Crim. App. May 19, 2004) (unpublished)………………………….....6

Campbell v. State, 5 S.W.3d 693 (Tex. Crim. App. 1999)……………………………………..7, 15-16, n. 3, 19

Cartwright v. State, 605 S.W.2d 287 (Tex. Crim. App. 1980)………………………………………………...12, 19

Davis v. State, 368 S.W.2d 368 (Tex. Crim. App. 1998)…………………………………………………….12

Ex parte Cavazos, 203 S.W.3d 333 (Tex. Crim. App. 2006) (orig. proceeding)………………….................13, 16

Ex parte Williams, 65 S.W.3d 656 (Tex. Crim. App. 2001)…………………………………………………….16

Gonzalez v. State, 117 S.W.3d 831 (Tex. Crim. App. 2003)…………………………………………………….12

Gutierrez-Rodriguez v. State, 44 S.W.3d 21 (Tex. Crim. App. 2014)…………………………………………..6, 13-14, 17

Hanna v. State, 426 S.W.3d 87 (Tex. Crim. App. 2014)………………………………………..6-7, 15-16, 19

Heath v. State, 817 S.W.2d 335 (Tex. Crim. App. 1991)…………………………………………………….16

Martin v. State, 874 S.W.2d 674 (Tex.Cr.App.1994)……………………………………………….......7, 15-16

Speth v. State, 6 S.W.3d 530 (Tex. Crim. App. 1999).…………………………………..………………..14

Taylor v. State, 131 S.W.3d 497 (Tex. Crim. App. 2004)…………………………………………………….12

Weir v. State, 278 S.W.3d 364 (Tex. Crim. App. 2006)………………………………………………...13, 16

Texas Courts of Appeals:

Alexander v. State, 301 S.W.3d 361 (Tex. App.—Fort Worth 2009, no pet.)……………………………………12

Jordan v. State, 979 S.W.2d 75 (Tex. App.—Austin 1998)…………………………………….7, 15 (n. 3), 17

O’Neal v. State, 426 S.W.3d 242 (Tex. App.—Texarkana 2013, no pet.)…………………………………….12

Rodriguez v. State, 939 S.W.2d 211 (Tex. App.—Austin 1997, no pet.)…………………………………………16

Statutes/Rules: Tex. Code Crim. Proc. Ann. 42.037(a)…………………………………7, 15-17, 19 Tex. Code Crim. Proc. Ann. art. 42.12, Section 9(j)….……………………………6 Tex. R. App. P. 38.7………………………………………………………………..7

JUSTIFICATION FOR SUPPLEMENTAL BRIEF 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, 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 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 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 SUPPLEMENTAL ISSUE PRESENTED ISSUE THREE: The restitution ordered in the judgment must be deleted because it constitutes a void sentence since it orders restitution for a victim of an offense for which Appellant was not charged or convicted.

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Related

Ex Parte Williams
65 S.W.3d 656 (Court of Criminal Appeals of Texas, 2001)
Gonzalez v. State
117 S.W.3d 831 (Court of Criminal Appeals of Texas, 2003)
Weir v. State
278 S.W.3d 364 (Court of Criminal Appeals of Texas, 2009)
Cartwright v. State
605 S.W.2d 287 (Court of Criminal Appeals of Texas, 1980)
Boehm Ex Rel. v. St. Louis Public Service Co.
368 S.W.2d 361 (Supreme Court of Missouri, 1963)
Ex Parte Cavazos
203 S.W.3d 333 (Court of Criminal Appeals of Texas, 2006)
Alexander v. State
301 S.W.3d 361 (Court of Appeals of Texas, 2009)
Taylor v. State
131 S.W.3d 497 (Court of Criminal Appeals of Texas, 2004)
Campbell v. State
5 S.W.3d 693 (Court of Criminal Appeals of Texas, 1999)
Speth v. State
6 S.W.3d 530 (Court of Criminal Appeals of Texas, 1999)
Jordan v. State
979 S.W.2d 75 (Court of Appeals of Texas, 1998)
Heath v. State
817 S.W.2d 335 (Court of Criminal Appeals of Texas, 1991)
Martin v. State
874 S.W.2d 674 (Court of Criminal Appeals of Texas, 1994)
Rodriguez v. State
939 S.W.2d 211 (Court of Appeals of Texas, 1997)
Hanna v. State
426 S.W.3d 87 (Court of Criminal Appeals of Texas, 2014)
Don Martin O'Neal v. State
426 S.W.3d 242 (Court of Appeals of Texas, 2013)