ACCEPTED 03-15-00043-CR 5056316 THIRD COURT OF APPEALS AUSTIN, TEXAS 4/28/2015 9:19:14 AM JEFFREY D. KYLE CLERK No. 03-15-0043-CR
IN THE COURT OF APPEALS FILED IN 3rd COURT OF APPEALS AUSTIN, TEXAS FOR THE THIRD SUPREME JUDICIAL DISTRICT 4/28/2015 9:19:14 AM JEFFREY D. KYLE Clerk OF TEXAS
KODY BROXTON, Appellant
VS.
THE STATE OF TEXAS, Appellee
From the 264th District Court of Bell County, Texas, the Honorable Judge Martha J. Trudo, presiding
APPELLANT’S REPLY BRIEF AND RESPONSE TO MOTION TO DISMISS
Ken Mahaffey Counsel for Appellant P. O. Box 684585 Austin, Texas 78768 Phone & Fax (512) 444-6557 St. Bar No. 12830050 Ken Mahaffey@yahoo.com TABLE OF CONTENTS
INDEX OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii
REPLY POINT NUMBER ONE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
This Court has jurisdiction to consider the challenge to the restitution order because any plea bargain did not include a reference to restitution and because the State specifically requested jail time instead of restitution.
REPLY POINT NUMBER TWO. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Waiver should limit a trial court's discretion concerning restitution.
PRAYER FOR RELIEF. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
CERTIFICATE OF SERVICE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
i INDEX OF AUTHORITIES
STATE CASES:
Acosta v. State, 70 S.W.3d 921 (Tex. App. - El Paso 2002, no pet. ). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Cuellar v. State, 70 S.W.3d 815 (Tex. Crim. App. 2002, J. Cochran, concurring). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Dears v. State, 154 S.W.3d 610 (Tex. Crim. App. (2005). . . . . . . . . . . . . . . . . . . . 3
FEDERAL CASES:
McNally v. United States, 483 U.S. 350 (1987). . . . . . . . . . . . . . . . . . . . . . . 4
STATUTES:
Art. 42.037, Tex. Code Crim. Proc. (2013).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 5
RULES:
Rule 25.2, Tex. R. App. Proc. (West 2015). . . . . . . . . . . . . . . . . . . . . . . . . . 2
SECONDARY AUTHORITY:
1 W. Blackstone, COMMENTARIES ON THE LAWS OF ENGLAND 88 (1765). . . . . . 4, 5
ii IN THE COURT OF APPEALS
FOR THE THIRD SUPREME JUDICIAL DISTRICT
OF TEXAS
TO THE HONORABLE JUSTICES OF THE COURT OF APPEALS:
COMES NOW Kody Broxton, Appellant, through counsel, Ken Mahaffey, and
respectfully submits this Reply Brief and Response to Motion to Dismiss.
REPLY POINTS
REPLY POINT NUMBER ONE:
This Court has jurisdiction to consider the challenge to the restitution order because any plea bargain did not include a reference to restitution and because the State specifically requested jail time instead of restitution.
ARGUMENT AND AUTHORITIES
The State made a motion to dismiss the appeal in its brief to this Court. This
1 appears to be based on Rule 25.2, Tex. R. App. Proc. (West 2015)(trial court must
certify any appeal after a guilty plea was not a plea bargain case). By challenging the
trial court's certification, the State's motion is essentially a plea to the jurisdiction of
this Court.
First, the only issue raised by appellant in this case is whether the trial court
properly ordered restitution when both the State and complainant asked for jail time
instead. Appellant will show this Court has jurisdiction to consider that sole issue.
Second, the trial court plainly found that restitution was not part of the plea
bargain. This is shown by the certification of the right of appeal that ". . . this was not
a plea bargain case and the defendant has the right of appeal." (CR 27). The issues
raised in sentencing were whether probation was appropriate and, whether, and in
what amount, restitution should be imposed. The trial court was well within its
authority to impose incarceration and that decision is not challenged by appellant.
(RR3 18 - 19, 25, 54 -55). The issue of restitution, however, was not covered by any
plea recommendation and the record shows it was a principal contested matter. Id.
The trial court obviously recognized this and ruled it could be appealed. (CR 27).
Third, while appellate courts have the authority to review the record to
determine whether a certification of the right to appeal was properly issued, see
Dears v. State, 154 S.W.3d 610, 615 (Tex. Crim. App. (2005)(reversing court of
2 appeals dismissal because the record did not show a plea bargain), this power relates
to challenges to the judgment of conviction. In this case, appellant does not challenge
the conviction. Instead, he challenges certain terms of sentencing not covered by any
plea agreement. Compare Acosta v. State, 70 S.W.3d 921, 923 (Tex. App. - El Paso
2002, no pet. ) (dismissing challenge to restitution order because specifically spelled
out in written plea bargain). Here, restitution was not addressed in any plea bargain.
Whether or not restitution orders are part of the trial court's discretionary authority
in sentencing, it is still clear that appellate courts have jurisdiction to review the
appropriateness of such orders.
Finally, the record shows the only recommendation was that any sentences run
concurrently; there is no reference to restitution. The only reference to restitution is
both the State's and complainant's request that jail time be imposed instead of
restitution. (RR3 19, 22, 25, 54 - 55). While this Court may well decide this order
was within the trial court's inherent power under the governing statute, it still has
jurisdiction to determine this issue.
REPLY POINT NUMBER TWO:
Waiver should limit a trial court's discretion concerning restitution.
3 1. Statutory Construction. The State argues that the trial court has statutory
discretion to impose restitution but does not directly address the waiver issue. It
argues that the statements were based on concerns that appellant could not actually
pay the restitution Without citing specific authority, the State also asserts that the
term “may” in Art. 42.037, Tex. Code Crim. Proc. (2013), means neither the State nor
the complainant must actually request or can waive restitution. See State’s Brief, p.
14. Simply put, that is the question presented for this Court to decide.
Appellant would submit that the statute should be strictly construed. The
United States Supreme Court has consistently held that due process requires penal
statutes be applied such that a “rule of lenity” resolves differences in the favor of the
accused. See McNally v. United States, 483 U.S. 350, 359 - 360 (1987). This rule has
deep roots in the development of our system of judicial review. See 1 W. Blackstone,
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ACCEPTED 03-15-00043-CR 5056316 THIRD COURT OF APPEALS AUSTIN, TEXAS 4/28/2015 9:19:14 AM JEFFREY D. KYLE CLERK No. 03-15-0043-CR
IN THE COURT OF APPEALS FILED IN 3rd COURT OF APPEALS AUSTIN, TEXAS FOR THE THIRD SUPREME JUDICIAL DISTRICT 4/28/2015 9:19:14 AM JEFFREY D. KYLE Clerk OF TEXAS
KODY BROXTON, Appellant
VS.
THE STATE OF TEXAS, Appellee
From the 264th District Court of Bell County, Texas, the Honorable Judge Martha J. Trudo, presiding
APPELLANT’S REPLY BRIEF AND RESPONSE TO MOTION TO DISMISS
Ken Mahaffey Counsel for Appellant P. O. Box 684585 Austin, Texas 78768 Phone & Fax (512) 444-6557 St. Bar No. 12830050 Ken Mahaffey@yahoo.com TABLE OF CONTENTS
INDEX OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii
REPLY POINT NUMBER ONE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
This Court has jurisdiction to consider the challenge to the restitution order because any plea bargain did not include a reference to restitution and because the State specifically requested jail time instead of restitution.
REPLY POINT NUMBER TWO. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Waiver should limit a trial court's discretion concerning restitution.
PRAYER FOR RELIEF. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
CERTIFICATE OF SERVICE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
i INDEX OF AUTHORITIES
STATE CASES:
Acosta v. State, 70 S.W.3d 921 (Tex. App. - El Paso 2002, no pet. ). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Cuellar v. State, 70 S.W.3d 815 (Tex. Crim. App. 2002, J. Cochran, concurring). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Dears v. State, 154 S.W.3d 610 (Tex. Crim. App. (2005). . . . . . . . . . . . . . . . . . . . 3
FEDERAL CASES:
McNally v. United States, 483 U.S. 350 (1987). . . . . . . . . . . . . . . . . . . . . . . 4
STATUTES:
Art. 42.037, Tex. Code Crim. Proc. (2013).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 5
RULES:
Rule 25.2, Tex. R. App. Proc. (West 2015). . . . . . . . . . . . . . . . . . . . . . . . . . 2
SECONDARY AUTHORITY:
1 W. Blackstone, COMMENTARIES ON THE LAWS OF ENGLAND 88 (1765). . . . . . 4, 5
ii IN THE COURT OF APPEALS
FOR THE THIRD SUPREME JUDICIAL DISTRICT
OF TEXAS
TO THE HONORABLE JUSTICES OF THE COURT OF APPEALS:
COMES NOW Kody Broxton, Appellant, through counsel, Ken Mahaffey, and
respectfully submits this Reply Brief and Response to Motion to Dismiss.
REPLY POINTS
REPLY POINT NUMBER ONE:
This Court has jurisdiction to consider the challenge to the restitution order because any plea bargain did not include a reference to restitution and because the State specifically requested jail time instead of restitution.
ARGUMENT AND AUTHORITIES
The State made a motion to dismiss the appeal in its brief to this Court. This
1 appears to be based on Rule 25.2, Tex. R. App. Proc. (West 2015)(trial court must
certify any appeal after a guilty plea was not a plea bargain case). By challenging the
trial court's certification, the State's motion is essentially a plea to the jurisdiction of
this Court.
First, the only issue raised by appellant in this case is whether the trial court
properly ordered restitution when both the State and complainant asked for jail time
instead. Appellant will show this Court has jurisdiction to consider that sole issue.
Second, the trial court plainly found that restitution was not part of the plea
bargain. This is shown by the certification of the right of appeal that ". . . this was not
a plea bargain case and the defendant has the right of appeal." (CR 27). The issues
raised in sentencing were whether probation was appropriate and, whether, and in
what amount, restitution should be imposed. The trial court was well within its
authority to impose incarceration and that decision is not challenged by appellant.
(RR3 18 - 19, 25, 54 -55). The issue of restitution, however, was not covered by any
plea recommendation and the record shows it was a principal contested matter. Id.
The trial court obviously recognized this and ruled it could be appealed. (CR 27).
Third, while appellate courts have the authority to review the record to
determine whether a certification of the right to appeal was properly issued, see
Dears v. State, 154 S.W.3d 610, 615 (Tex. Crim. App. (2005)(reversing court of
2 appeals dismissal because the record did not show a plea bargain), this power relates
to challenges to the judgment of conviction. In this case, appellant does not challenge
the conviction. Instead, he challenges certain terms of sentencing not covered by any
plea agreement. Compare Acosta v. State, 70 S.W.3d 921, 923 (Tex. App. - El Paso
2002, no pet. ) (dismissing challenge to restitution order because specifically spelled
out in written plea bargain). Here, restitution was not addressed in any plea bargain.
Whether or not restitution orders are part of the trial court's discretionary authority
in sentencing, it is still clear that appellate courts have jurisdiction to review the
appropriateness of such orders.
Finally, the record shows the only recommendation was that any sentences run
concurrently; there is no reference to restitution. The only reference to restitution is
both the State's and complainant's request that jail time be imposed instead of
restitution. (RR3 19, 22, 25, 54 - 55). While this Court may well decide this order
was within the trial court's inherent power under the governing statute, it still has
jurisdiction to determine this issue.
REPLY POINT NUMBER TWO:
Waiver should limit a trial court's discretion concerning restitution.
3 1. Statutory Construction. The State argues that the trial court has statutory
discretion to impose restitution but does not directly address the waiver issue. It
argues that the statements were based on concerns that appellant could not actually
pay the restitution Without citing specific authority, the State also asserts that the
term “may” in Art. 42.037, Tex. Code Crim. Proc. (2013), means neither the State nor
the complainant must actually request or can waive restitution. See State’s Brief, p.
14. Simply put, that is the question presented for this Court to decide.
Appellant would submit that the statute should be strictly construed. The
United States Supreme Court has consistently held that due process requires penal
statutes be applied such that a “rule of lenity” resolves differences in the favor of the
accused. See McNally v. United States, 483 U.S. 350, 359 - 360 (1987). This rule has
deep roots in the development of our system of judicial review. See 1 W. Blackstone,
COMMENTARIES ON THE LAWS OF ENGLAND 88 (1765)(penal statutes to be strictly construed
against the government). It has also been reaffirmed in current Texas jurisprudence.
See Cuellar v. State, 70 S.W.3d 815, 821 (Tex. Crim. App. 2002, J. Cochran,
concurring).
2. Waiver. Basically, both the State and the complainant directly told the trial
court that they were not requesting restitution and expressly requested jail time
instead. (RR3 19, 22, 25, 54 - 55). The record shows the request for jail time was a
4 specific request for a different form of remedy. Id. The parties made a clear choice.
Both the State and the complainant could have requested both restitution and
incarceration but they did not. Instead, the parties manifested a desire for a different
result. Again, as stated in appellant's original brief, the issue is whether the trial court
abuses its discretion under the statutory authority to impose restitution when both not
requested and waived by the State and the complainant. See Art. 42.037, Tex. Code
Crim. Proc. (2013). Appellant argues this Court should recognize that waivers
concerning restitution should affect the trial court's discretion under Art. 42.037,
supra. The proper remedy is to delete the restitution order.
PRAYER FOR RELIEF
WHEREFORE, PREMISES CONSIDERED, Appellant respectfully prays that
the judgment of conviction be modified to delete the restitution order.
Respectfully Submitted,
Ken Mahaffey Counsel for Appellant P.O. Box 684585 Austin, Texas 78768 Phone & Fax (512) 444-6557 St. Bar. No. 12830050 Ken Mahaffey@yahoo.com
5 CERTIFICATE OF SERVICE
The above signature certifies that on April 27, 2015, this document was sent
to the Bell County D.A.’s Office, P.O. Box 540, Belton, Texas 76513 and to Kody
Broxton, 01972710, 1018 Arnold Drive, Bartlett TX 76511. The above signature also
certifies that this document contains 1273 words in compliance with Rule 9.4, (c)
Tex. R. App. Proc. (2015)(reply brief not to exceed 7,500 words).