                                                                          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




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                                    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




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                        IN THE COURT OF APPEALS

            FOR THE THIRD SUPREME JUDICIAL DISTRICT

                                   OF TEXAS



                          KODY BROXTON, Appellant

                                       VS.

                       THE STATE OF TEXAS, Appellee


             APPELLANT’S REPLY BRIEF AND RESPONSE
                    TO MOTION TO DISMISS

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.


                       ARGUMENT AND AUTHORITIES

                                           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).




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