








IN THE
TENTH COURT OF APPEALS
 

No. 10-01-090-CR


     BONNIE SUE MARBUT,
                                                                         Appellant
     v.

     THE STATE OF TEXAS,
                                                                         Appellee
 

From the 66th District Court
Hill County, Texas
Trial Court Nos.  31,023
                                                                                                                
                                                                                                         
OPINION ON PETITION FOR DISCRETIONARY REVIEW
                                                                                                               
      On original submission, we dismissed this case for want of jurisdiction because the prior
decision of a majority of this court held that Riewe v. State foreclosed the opportunity to amend
a notice of appeal.  Marbut v. State, ___ S.W.3d ___, 2001 WL 668476 (Tex. App.—Waco June
13, 2001) (citing Riewe v. State, 13 S.W.3d 408 (Tex. Crim. App. 2000)).  However, Marbut's
Petition for Discretionary Review points out reasons why we should hear her appeal.  
      The record shows that she was indicted for “hindering secured creditors” in an amount of
$1,500 or more but less than $20,000, a state jail felony.  Tex. Pen. Code Ann. § 32.33 (Vernon
1994).  On the face of the indictment, the amounts are interlined and changed to $500 and $1,500,
amounts charging a Class A misdemeanor.  The order placing her on deferred adjudication
probation states that Marbut pled guilty to “THEFT $500.00 - $1,500.00 CLASS A,” and that the
court finds the evidence substantiates that Marbut is guilty of “the offense of THEFT $500-$1,500.00 CLASS A.”  The judgment, on the other hand, finds her guilty of hindering secured
creditors, $1,500.00 -$20,000.00, a felony.  She was ordered to serve one year in the county jail. 
One year is the maximum sentence for a Class A misdemeanor.  Also, a state jail felony is not
served in the county jail; misdemeanors are.
      A reduction in punishment for a state jail felony is allowed by section 12.44 of the Penal
Code:
      Reduction of State Jail Felony Punishment to Misdemeanor Punishment
(a) A court may punish a defendant who is convicted of a state jail felony by imposing the
confinement permissible as punishment for a Class A misdemeanor if, after considering the
gravity and circumstances of the felony committed and the history, character, and
rehabilitative needs of the defendant, the court finds that such punishment would best serve
the ends of justice.
 
(b) When a court is authorized to impose punishment for a lesser category of offense as
provided in Subsection (a), the court may authorize the prosecuting attorney to prosecute
initially for the lesser category of offense.

Tex. Pen. Code Ann. § 12.44 (Vernon Supp. 2001).  Subsection “b” appears to control here,
i.e., the felony indictment was interlined to prosecute Marbut for a misdemeanor.  Interlining an
indictment is an acceptable means by which to amend it.  Riney v. State, 28 S.W.3d 561, 565-66
(Tex. Crim. App. 2000).
      Based on the documents, the charge against Marbut was reduced to a misdemeanor when the
indictment was amended.  She pled to a misdemeanor and was placed on deferred adjudication
community supervision on the basis of a misdemeanor.  She was then adjudicated guilty and
sentenced for a felony.  The judgment is void because Marbut was convicted of a crime different
from the one she pled guilty to.  Ivory v. State, 632 S.W.2d 614, 616 (Tex. Crim. App. 1982);
Bartley v. State, 789 S.W.2d 288, 290-92 (Tex. App.—Dallas 1990, pet. ref’d).
      Therefore, we withdraw our opinion and judgment dated June 13, 2001.  Tex. R. App. P. 50. 
We reverse the trial court’s judgment and remand for a hearing on the misdemeanor adjudication. 
Tex. Code Crim. Proc. Ann. art. 42.12, § 5(b) (Vernon Supp. 2001).  Marbut’s Petition for
Discretionary Review is dismissed by operation of law.  Tex. R. App. P. 50.
 
BILL VANCE
                                                                         Justice

Before Chief Justice Davis,
      Justice Vance, and
      Justice Gray
      (Justice Gray not participating)
Opinion delivered and filed August 31, 2001
Do not publish
