                                                                            ACCEPTED
                                                                        03-15-00096-CR
                                                                                4973299
                                                             THIRD COURT OF APPEALS
                                                                        AUSTIN, TEXAS
                                                                   4/21/2015 2:47:36 PM
                                                                      JEFFREY D. KYLE
                                                                                 CLERK
                 No. 03-15-00096-CR
                       IN THE
                COURT OF APPEALS                  FILED IN
                                           3rd COURT OF APPEALS
    OF THE THIRD SUPREME JUDICIAL DISTRICT     AUSTIN, TEXAS
    ____________________________________________
                                           4/21/2015 2:47:36 PM
                                                  JEFFREY D. KYLE
               WALTER LEE SCOTT, JR.,                  Clerk
                    Appellant,

                          v.

                   STATE OF TEXAS
     ____________________________________________

                Appeal in Cause No. 73759
               in the 264th District Court of
                    Bell County, Texas
    _____________________________________________

REPLY BRIEF FOR APPELLANT WALTER LEE SCOTT, JR.
    ____________________________________________




                               JOHN A. KUCHERA
                               210 N. 6th St.
                               Waco, Texas 76701
                               (254) 754-3075
                               (254) 756-2193 (facsimile)
                               SBN 00792137
                               johnkuchera@210law.com
                               Attorney for Appellant
                               Table of Contents
                                                                          Page

Table of Contents                                                         ii

Table of Authorities                                                      iii

Argument

 The trial court’s order of restitution was improper because it ordered   2-3
  restitution for conduct that was not a part of Scott’s offense of
  conviction


Certificate of Service                                                    4

Certificate of Compliance                                                 5




                                                                                 ii
                                       Table of Authorities

                                                                                                 Page(s)

Cases
Campbell v. State,
  5 S.W.3d 693 (Tex. Crim. App. 1999) ................................................................. 2

Hanna v. State,
  426 S.W.3d 87 (Tex. Crim. App. 2014) ............................................................... 2

Reasor v. State,
  281 S.W.3d 129 (Tex.App.—San Antonio 2008, pet. ref’d)................................ 3

Statutes
Tex. Crim. Proc. Code Ann. art. 42.037(b)(1)(B) ..................................................... 3
Tex. Crim. Proc. Code Ann. art. 42.037(b)(2)(A) ..................................................... 3

Tex. Crim. Proc. Code Ann. art. 42.037(k) ............................................................... 2




                                                                                                         iii
                                      IN THE
                              COURT OF APPEALS

           OF THE THIRD SUPREME JUDICIAL DISTRICT
   _____________________________________________________________


WALTER LEE SCOTT, JR.,
   Appellant,

     v.                                                   No. 03-15-00096-CR


STATE OF TEXAS

    ____________________________________________________________
                       Appeal in Cause No. 73759
                      in the 264th District Court of
                           Bell County, Texas
    ____________________________________________________________

          REPLY BRIEF OF APPELLANT WALTER LEE SCOTT, JR.

TO THE HONORABLE JUSTICES OF THE THIRD COURT OF APPEALS:

      NOW COMES WALTER LEE SCOTT, JR., Appellant, by and through

undersigned counsel, and submits this reply brief pursuant to the provisions of the

Texas Rules of Appellate Procedure. Appellant raises four issues in his principal

brief. The State has now filed its brief. Appellant responds herein to the State’s

arguments regarding his third issue. Appellant otherwise rests on his principal brief.




                                                                                    1
Regarding Scott’s third issue: Whether the record contains a factual basis to
support the trial court’s order of restitution.


1. The State has moved to supplement the record with the presentence report. The

State argues that statements in the presentence report provide a sufficient basis for

the trial court’s restitution order:

       In this case the presentence report included a victim impact statement.
       In that statement the victim, Kasandra Holt, described how the
       Appellant threw a phone at her during the assault. She also stated that
       her cell phone had been damaged and her loss was $50.00.

State Br., pg. 18.



       Appellant’s reply

       The State is arguing that Scott should make restitution for conduct that is not

part of his offense of conviction. Restitution can be properly ordered for a loss

sustained by the victim only if the loss is a result of the offense of conviction. Tex.

Crim. Proc. Code Ann. art. 42.037(k); Hanna v. State, 426 S.W.3d 87, 92 (Tex.

Crim. App. 2014). “The trial court may not order restitution for an offense for which

the defendant is not criminally responsible.” Campbell v. State, 5 S.W.3d 693, 697

(Tex. Crim. App. 1999). Article 42.037 provides:

       If the offense results in damage to or loss or destruction of property of a
       victim of the offense, the court may order the defendant . . . to pay an
       amount equal to the greater of:


                                                                                     2
        (i) the value of the property on the date of the damage, loss, or destruction;
        or
        (ii) the value of the property on the date of sentencing, less the value of any
        part of the property that is returned on the date the property is returned.
Tex. Crim. Proc. Code Ann. art. 42.037(b)(1)(B).

      If the offense results in personal injury to a victim, the court may order the
      defendant to make restitution to . . . the victim for any expenses incurred by
      the victim as a result of the offense[.]
Tex. Crim. Proc. Code Ann. art. 42.037(b)(2)(A).

      Scott was charged with causing bodily injury to Kassandra Holt by applying

pressure to her throat or neck. CR 4.          The Victim Impact Statement in the

presentence report (the basis for the trial court’s restitution order) states on page 1:

      6. Describe Property Damage or Loss: The defendant damaged the
      victim’s cell phone - $50.00.
      TOTAL RESTITUTION: $50.00
      Payable To: Kasandra Holt

Scott was not charged with damaging or stealing Holt’s cell phone. It was therefore

improper for the trial court to order Scott to make restitution for a damaged cell

phone when the cell phone had nothing to do with the Scott’s alleged “applying

pressure to Holt’s throat or neck.” See Reasor v. State, 281 S.W.3d 129, 135

(Tex.App.—San Antonio 2008, pet. ref’d) (improper for trial court to order

restitution for damage done to rental home and writing hot checks where offense of

conviction was possession of cocaine).

                                                                                       3
                                     Respectfully submitted,

                                     /s/ John A. Kuchera
                                     John A. Kuchera
                                     210 N. 6th St.
                                     Waco, Texas 76701
                                     (254) 754-3075
                                     (254) 756-2193 (facsimile)
                                     SBN 00792137
                                     johnkuchera@210law.com
                                     Attorney for Appellant



                             Certificate of Service

      This is to certify that a true and correct copy of the above and foregoing

Appellant’s Brief has this day been mailed to the office of Mr. Bob D. Odom,

Assistant District Attorney, P.O. Box 540, Belton, Texas 76513.

      SIGNED this 21st day of April, 2015.

                         /s/ John A. Kuchera
                         John A. Kuchera,
                         Attorney for Walter Lee Scott, Jr.




                                                                               4
                    Certificate of Compliance with Rule 9.4

1. This brief complies with the type-volume limitation of Tex. R. App. P. 9.4(i)
because the brief contains 599 words, excluding the parts of the brief exempted by
Tex. R. App. P. 9.4(i)(1).


2. This brief complies with the typeface requirements of Tex. R. App. P. 9.4(e) and
the type style requirements of Tex. R. App. P. 9.4(e) because the brief has been
prepared in a proportionally spaced typeface using Microsoft Word 2013 in Times
New Roman, size 14 font.



                         /s/ John A. Kuchera
                         John A. Kuchera,
                         Attorney for Walter Lee Scott, Jr.


Dated: April 21, 2015




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