                                                                                 ACCEPTED
                                                                            03-14-00616-CR
                                                                                   4378331
                                                                  THIRD COURT OF APPEALS
                                                                             AUSTIN, TEXAS
                                                                        3/4/2015 9:52:52 PM
                                                                          JEFFREY D. KYLE
                                                                                     CLERK
                   CAUSE NO. 03-14-00616-CR

       _________________________________________________
                                                      FILED IN
                                           3rd COURT OF APPEALS
                                               AUSTIN, TEXAS
                 IN THE COURT OF APPEALS   3/4/2015 9:52:52 PM
             FOR THE THIRD DISTRICT OF TEXAS JEFFREY D. KYLE
                      AUSTIN DIVISION              Clerk
       _________________________________________________


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

        _______________________________________________

                  APPELLANT’S REPLY 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


                                 1
	  
                 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




                                       2
	  
                   TABLE OF CONTENTS

Identity of Parties and Counsel…………………………..………………………... 2

Table of Contents……………………………………….…………………………..3

Index of Authorities…………………………………….………………………..4-5

Summary of the Argument……………………………..…………………….......6-7

Argument…………………………………………………………………..........7-13

Conclusion………………………………………………………………………...13

Prayer…………………..…………………………………………………….........13

Certificate of Compliance………………………………………………………....14

Certificate of Service……………………………………………………………...15




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                         INDEX OF AUTHORITIES

Texas Court of Criminal Appeals:

Campbell v. State, 5 S.W.3d 693
    (Tex. Crim. App. 1999)……………………………………………………...8

Ex parte Cavazos, 203 S.W.3d 333
      (Tex. Crim. App. 2006) (orig. proceeding)………………….........................8

Gutierrez-Rodriguez v. State, 444 S.W.3d 21
      (Tex. Crim. App. 2014)……………………………………………………7-8

Hanna v. State, 426 S.W.3d 87
     (Tex. Crim. App. 2014)…………………………………………………..7-10

Martin v. State, 874 S.W.2d 674
      (Tex.Cr.App.1994)…………………………………………………………..8

Speth v. State, 6 S.W.3d 530
      (Tex. Crim. App. 1999)……………………………………………………...8

Weir v. State, 278 S.W.3d 364
      (Tex. Crim. App. 2006)……………………………………………………...8

Texas Courts of Appeals:

Jordan v. State, 979 S.W.2d 75
     (Tex. App.—Austin 1998)…………………………………………………..9

Rodriguez v. State, 939 S.W.2d 211
      (Tex. App.—Austin 1997, no pet.)………………………………………..8-9

Rotella v. State, No. 02-12-00485-CR, 2014 WL 70101
      (Tex. App.—Fort Worth Jan. 9, 2014, no pet.)
      (mem. op., not designated for publication)…………………………..6, 11-12

Statutes/Rules:

Tex. Code Crim. Proc. Ann. 42.037(a)……………………………………………..9

                                       4
	  
Tex. Code Crim. Proc. Ann. 42.037(k)……………………………...…………..n. 1




                             5
	  
                         SUMMARY OF THE ARGUMENT

Issue One

       The State raises the possibility that the restitution order should simply be

deleted because it is not authorized by law, but provides no basis for concluding it

can still be ordered. In fact, restitution is not authorized here because it is not

related to the charged offense. It turns out, then, that the restitution is a void

sentence, and should be deleted.

       Even if the restitution can still be ordered, the State all-but-concedes that

Appellant paid something, yet argues this is fine because of the trial judge’s

comments during oral pronouncement and because of the boilerplate language in

the judgment requiring Appellant to pay whatever remains unpaid of the restitution

after she is released from incarceration. This does not create a wise or just rule to

apply to future cases.

       Finally, the State misconstrues Rotella v. State.     In Rotella, there was

testimony reflecting the precise amounts of restitution owed, and these amounts

were included in the judgment. Here, there was no comparable testimony, and the

record suggests both that the full amount is owed and that something less than the

full amount is owed.




                                          6
	  
Issue Two

       The State ignores Appellant’s argument that the record suggests some

amount was paid towards court costs.

                                  ARGUMENT

Issue One

       1. The State raises the possibility that restitution might not be properly
          ordered, but does not explain why it may be properly ordered.
          Instead, ordering restitution here would constitute a void sentence.

       The State writes: “If, however, this restitution to the same victim for the

check passed by the Appellant during the same course of criminal conduct as that

made the basis of this prosecution is not properly ordered upon adjudication of

guilt, then the remedy would seem to be simply deleting the order for the payment

of that restitution from the judgment.” State’s Brief at 11-12. We may quibble

with the State that this case involved the “same course of criminal conduct”—the

two forgeries occurred on two different days (I Supp. C.R. at 8)—but the more

important point is that the State acknowledges that restitution that may have been

properly ordered as a condition of community supervision under Gutierrez-

Rodriguez v. State, 444 S.W.3d 21 (Tex. Crim. App. 2014) may no longer be

properly ordered when a defendant is sentenced.

       The reason, as elaborated in Appellant’s supplemental brief, is that

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


                                        7
	  
is charged”, Hanna v. State, 426 S.W.3d 87, 91 (Tex. Crim. App. 2014). Thus,

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.”). It seems a defendant may

agree to pay restitution for an uncharged offense when he accepts it as a condition

of community supervision and thereby becomes a party to a sort of contract, see

Gutierrez-Rodriguez, 444 S.W.3d at 23-24, but because “community supervision is

not a sentence or even a part of a sentence,” Speth v. State, 6 S.W.3d 530, 532

(Tex. Crim. App. 1999), this same rule would not apply to a defendant’s sentence,

which must be authorized by law and is not part of a contract. Weir v. State, 278

S.W.3d 364, 366 (Tex. Crim. App. 2006) and Ex parte Cavazos, 203 S.W.3d 333,

338 (Tex. Crim. App. 2006) (orig. proceeding) (restitution is punishment);

Rodriguez v. State, 939 S.W.2d 211, 222 (Tex. App.—Austin 1997, no pet.) (““[i]f


                                          8
	  
the punishment is not authorized by law, the order imposing punishment is void.”);

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 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).

       The State does not give any reason Appellant’s sentence is not void or why

restitution may now be ordered. Instead, the State only argues the presentencing

investigation report provides evidence of the amount of restitution owed. State’s

Brief at 12. But that amount, it turns out, is owed for a different, uncharged

offense. (I C.R. at 5-6); (I Supp. C.R. at 8). And as for the offense with which

Appellant was charged, she did not profit from it and no one suffered any loss

because she was caught before she completed the crime. (I Supp. C.R. at 8). Thus,

there really is no restitution owed for the charged offense.

       2. The State all-but-concedes Appellant paid something towards
          restitution, but its reason for nevertheless finding the judgment and
          oral pronouncement proper does not hold up.

       Twice the State nearly concedes Appellant paid something towards




                                          9
	  
restitution. State’s Brief at 14 (“The Appellant claims that the evidence indicates

she has made some payment toward that total amount of restitution while on

deferred adjudication. That is probably the case.”) (emphasis added) and n. 2

(“Presumably the amount paid on deferred adjudication is known by the Appellant

or available in the record of the Community Supervision Department.”). Yet the

State argues this does not change the result because of some boilerplate language

in the judgment and the trial court’s qualification that Appellant would have to pay

only whatever remains unpaid. State’s Brief at 14. It is worth considering what

accepting the State’s argument means for future cases.

       First, it would be an odd way of doing business if a lawyer sent out monthly

bills to clients accompanied by letters that said: “Dear Client: Enclosed is your

bill for the amount you owe. However, you may not actually owe this amount—

I’m really not sure. Therefore, you only owe whatever you haven’t paid on this

bill. What that amount may be, I have no idea, but I trust my office manager does.

By the way, if you don’t pay within thirty days I’m withdrawing as counsel.

Sincerely, Attorney-at-Law.” Facetious, yes, but this is hardly different from what

the State is asking this Court to sanction.

       Second, the State’s argument relieves it of its burden of proof. See Hanna,

426 S.W.3d at 92 (“Section (k) also puts the burden to demonstrate the amount of

the loss sustained by a victim as a result of the offense on the State”) (internal


                                          10
	  
citations omitted). If some restitution has been paid, the “loss sustained by the

victim” is now less, and it is the State’s burden to prove that amount. Id. But if

the trial court can simply refer back to the original order of restitution and tack on

some magic words, the State has been relieved of its burden to prove the amount of

restitution owed.1

                                                           Third, what happens when, as here, there is a legitimate dispute about the

proper amount of restitution owed and the record does not show the amount

actually owed? It is better to have the trial judge fix the precise amount owed

based on sufficient evidence rather than leave that determination to whoever the

restitution victim’s bill collector will be down the road.

                                                           3. The State Misunderstands Rotella v. State.

                                                           The State argues the order in this case is “tantamount to the order” in Rotella

v. State, No. 02-12-00485-CR, 2014 WL 70101 (Tex. App.—Fort Worth Jan. 9,

2014, no pet.) (mem. op., not designated for publication). Appellant does not see

in the case where the “defendant requested that the trial court deduct the payments

made by him during his deferred adjudication in the judgment adjudicating guilt”,

	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  
1
  If instead the burden of proving the current loss to the victim, as opposed to the initial loss, is a
matter that could be allocated by the trial court “as justice requires”, see Tex. Code Crim. Proc.
art. 42.037(k), then it is at least potentially allocable to the State, so this Court should not create a
rule that relieves the State of this burden. For example, the trial court could view proving the
current loss to the victim as a continuation of the State’s burden to prove the loss to the victim,
and accordingly place the burden on the State. Alternatively, the trial court could place the
burden on the defendant by treating this a situation where the defendant must prove the amount
actually paid.
                                                                                                                                                                                                                                                       11
	  
State’s Brief at 14-15, nor where “[t]he court declined to do so and entered the

original amount of restitution ordered when he was placed on deferred

adjudication.” State’s Brief at 15. Rather, in Rotella a “representative from the

Denton County Probation Department” testified to the precise amounts of

restitution paid and owed; indeed, the “judgments adjudicating Rotella’s

guilt…accurately reflect the amounts testified to by the representative.” Rotella,

2014 WL at * 2.      Moreover, the judgments apparently ordered the defendant to

pay the precise amounts, which gave him credit for the amounts he had paid, not

simply whatever remained unpaid. Id. at * 1. Nothing comparable occurred here.

Here, the State presented no witnesses and the record suggests different amounts of

restitution could be owed. Rotella does not save this case for the State.

Issue Two

       4. The State ignores Appellant’s argument that some court costs were
          paid.

       It is worth pointing out that nowhere in the State’s reply to Appellant’s issue

regarding court costs does the State address Appellant’s argument that the record

suggests some court costs were paid, and thus Appellant should not be ordered to

pay the full amount. To the extent the State would rely on what Appellant has

termed the “magic words” indicated above, the same arguments above apply.




                                          12
	  
Conclusion

        Ordering restitution, on these facts, turns out to constitute a void sentence.

If not, the record still suggests some amount was paid, and the State’s argument

that there is no error because Appellant is only ordered to pay what remains unpaid

will not hold up. This case is not like Rotella, and the State does not address

Appellant’s argument that some court costs appear to have been paid. Therefore,

this Court should still rule in Appellant’s favor.

                                      PRAYER

        WHEREFORE, PREMISES CONSIDERED, Appellant asks this Court to

DELETE the restitution ordered in the trial court’s judgment and AFFIRM the trial

court’s judgment as modified, or in the alternative to VACATE the restitution

ordered and REMAND for a new hearing on the proper amount of restitution

owed.     Additionally, the Court should either VACATE the court costs and

REMAND for a hearing on the amount actually owed, or REFORM the judgment

to reflect the delinquency Appellant to which Appellant pled true.




                                          13
	  
                                       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

                                       ATTORNEY FOR APPELLANT




                      CERTIFICATE OF COMPLIANCE

       I hereby certify that, pursuant to Rule 9 of the Texas Rules of Appellate
Procedure, Appellant’s Reply Brief contains 1,757 words, exclusive of the caption,
identity of parties and counsel, statement regarding oral argument, table of
contents, index of authorities, statement of the case, statement of issues presented,
statement of jurisdiction, statement of procedural history, signature, proof of
service, certification, certificate of compliance, and appendix.


                                              /s/ Justin Bradford Smith
                                              Justin Bradford Smith




                                         14
	  
                         CERTIFICATE OF SERVICE

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

Appellant’s Brief was forwarded to the counsel below by eservice:

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

                                             /s/ Justin Bradford Smith
                                             Justin Bradford Smith




                                        15
	  
