                                                                                ACCEPTED
                                                                           03-14-00616-CR
                                                                                   4362710
                                                                  THIRD COURT OF APPEALS
                                                                            AUSTIN, TEXAS
                                                                       3/4/2015 9:52:21 AM
                                                                          JEFFREY D. KYLE
                                                                                     CLERK
                   CAUSE NO. 03-14-00616-CR

       _________________________________________________
                                                      FILED IN
                                           3rd COURT OF APPEALS
                                               AUSTIN, TEXAS
                 IN THE COURT OF APPEALS   3/9/2015 9:52:21 AM
             FOR THE THIRD DISTRICT OF TEXAS JEFFREY D. KYLE
                      AUSTIN DIVISION              Clerk
       _________________________________________________


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

        _______________________________________________

             APPELLANT’S SUPPLEMENTAL 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

Justification for Supplemental Brief…………………………...………………...6-8

Supplemental Issue Presented….…...…....…………………….……….………….8

       ISSUE THREE: The restitution ordered in the judgment must be deleted
                    because it constitutes a void sentence since it orders
                    restitution for a victim of an offense for which Appellant
                    was not charged or convicted.……………….……………8

Supplemental Statement of Facts…….……………..…………………………....8-9

Summary of the Argument……………………………..…………………….....9-11

       ISSUE THREE: The restitution ordered in the judgment must be deleted
                    because it constitutes a void sentence since it orders
                    restitution for a victim of an offense for which Appellant
                    was not charged or convicted………………….………….9

Argument…………………………………………………………………........12-19

Standard of Review…………………….…...…………………………………….12

Law and Analysis……………..…………………………..…………………...12-19

Conclusion………………………………………………………………………...19

Prayer…………………..…………………………………………………….........20

Certificate of Compliance………………………………………………………....20

Certificate of Service……………………………………………………………...21


                                       3
	
  
                        INDEX OF AUTHORITIES

Texas Court of Criminal Appeals:

Brewer v. State, No. 1270-03, 2004 WL 3093224
     (Tex. Crim. App. May 19, 2004) (unpublished)………………………….....6

Campbell v. State, 5 S.W.3d 693
    (Tex. Crim. App. 1999)……………………………………..7, 15-16, n. 3, 19

Cartwright v. State, 605 S.W.2d 287
     (Tex. Crim. App. 1980)………………………………………………...12, 19

Davis v. State, 368 S.W.2d 368
      (Tex. Crim. App. 1998)…………………………………………………….12

Ex parte Cavazos, 203 S.W.3d 333
      (Tex. Crim. App. 2006) (orig. proceeding)………………….................13, 16

Ex parte Williams, 65 S.W.3d 656
      (Tex. Crim. App. 2001)…………………………………………………….16

Gonzalez v. State, 117 S.W.3d 831
     (Tex. Crim. App. 2003)…………………………………………………….12

Gutierrez-Rodriguez v. State, 44 S.W.3d 21
      (Tex. Crim. App. 2014)…………………………………………..6, 13-14, 17

Hanna v. State, 426 S.W.3d 87
     (Tex. Crim. App. 2014)………………………………………..6-7, 15-16, 19

Heath v. State, 817 S.W.2d 335
      (Tex. Crim. App. 1991)…………………………………………………….16

Martin v. State, 874 S.W.2d 674
      (Tex.Cr.App.1994)……………………………………………….......7, 15-16

Speth v. State, 6 S.W.3d 530
      (Tex. Crim. App. 1999).…………………………………..………………..14


                                      4
	
  
Taylor v. State, 131 S.W.3d 497
      (Tex. Crim. App. 2004)…………………………………………………….12

Weir v. State, 278 S.W.3d 364
      (Tex. Crim. App. 2006)………………………………………………...13, 16

Texas Courts of Appeals:

Alexander v. State, 301 S.W.3d 361
      (Tex. App.—Fort Worth 2009, no pet.)……………………………………12

Jordan v. State, 979 S.W.2d 75
     (Tex. App.—Austin 1998)…………………………………….7, 15 (n. 3), 17

O’Neal v. State, 426 S.W.3d 242
     (Tex. App.—Texarkana 2013, no pet.)…………………………………….12

Rodriguez v. State, 939 S.W.2d 211
      (Tex. App.—Austin 1997, no pet.)…………………………………………16

Statutes/Rules:

Tex. Code Crim. Proc. Ann. 42.037(a)…………………………………7, 15-17, 19

Tex. Code Crim. Proc. Ann. art. 42.12, Section 9(j)….……………………………6

Tex. R. App. P. 38.7………………………………………………………………..7




                                5
	
  
                 JUSTIFICATION FOR SUPPLEMENTAL BRIEF

       A presentence investigation report (PSI) is not ordinarily part of the

appellate record. Brewer v. State, No. 1270-03, 2004 WL 3093224, at *4 (Tex.

Crim. App. May 19, 2004) (unpublished); see Tex. Code Crim. Proc. art. 42.12,

Sec. 9(j) (report is confidential).     Until the State asked for permission to

supplement the record with the PSI, therefore, we (or at least this writer), did not

know that, as the State concedes, the restitution ordered in the judgment was not

for the offense for which Appellant was charged. See State’s Brief, at 10-11.

Rather, it appeared that the restitution included in the written judgment ($1,922.57)

constituted the portion of the $7,475.41 originally charged that was still owed or

not recovered.

       Now it is clear that the trial court ordered Appellant to pay restitution for a

crime for which Appellant was neither charged nor convicted. While Appellant

agrees with the State that this was (arguably) proper under Gutierrez-Rodriguez v.

State, 44 S.W.3d 21 (Tex. Crim. App. 2014) in the original order of deferred

adjudication that granted Appellant community supervision, it is not proper now

that Appellant has been sentenced. Rather, since restitution “may be ordered only

to a victim of an offense for which the defendant is charged”, Hanna v. State, 426

S.W.3d 87, 91 (Tex. Crim. App. 2014), Appellant cannot be ordered to pay

restitution as a part of her sentence to an entity who is not a victim of this forgery


                                          6
	
  
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.”).

       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); 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 light of these facts, it is proper for the Court to consider this additional

issue, and it would also be proper to afford the State an opportunity to respond.

Tex. R. App. P. 38.7 (“A brief may be amended or supplemented whenever justice

requires, on whatever reasonable terms the court may prescribe.”). Certainly the


                                          7
	
  
possibility that Appellant has received a void sentence is an instance of “justice

requir[ing]” a supplemental brief. Therefore, Appellant is filing this supplemental

brief raising an additional issue, along with a motion for leave to file the same, and

asks the Court both to consider this new issue and to allow the State a chance to

respond.1

                                                                                                                                                                                        SUPPLEMENTAL ISSUE PRESENTED

                                                           ISSUE THREE: The restitution ordered in the judgment must be deleted

because it constitutes a void sentence since it orders restitution for a victim of an

offense for which Appellant was not charged or convicted.

                                                                                                                                                             SUPPLEMENTAL STATEMENT OF FACTS

                                                           Appellant will rely on the Statement of Facts in her initial brief,

supplemented by the following.                                                                                                                                                                                                                         Appellant was charged by information with

forgery by passing. (I C.R. at 5-6). The amount of the check the State alleged she

forged, a copy of which was included in the information, was $7,475.41, and the

victim was Central National Bank. (I C.R. at 5). Appellant pled guilty and

received deferred adjudication pursuant to a plea bargain, one term of which was


	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  
1
  It seemed most straightforward to draft a separate brief to supplement Appellant’s initial brief,
rather than file an amended brief including all three issues. In light of the fact that Appellant,
time permitting, may need to file a reply brief as well (in case the Court does not allow this
supplemental brief, does not agree with Appellant’s arguments, or Appellant turns out to be
wrong), Appellant asks this Court to accept this supplemental brief as is rather than direct
Appellant to file an amended brief incorporating all three issues into one document.


                                                                                                                                                                                                                                                           8
	
  
that she pay restitution in the amount of $1,922.57 at a rate of $35.00 per month. (I

C.R. at 28-30).

       In fact, Central National Bank lost none of the $7,475.41: Appellant was

caught before she received any money. (I Supp. C.R. at 8). Instead, “Central

National Bank later discovered that the defendant successfully cashed a check the

previous day for $1,922.57. Central National Bank reimbursed HAP Investments

for the check.” (I Supp. C.R. at 8). So, Central National Bank lost $1,922.57, but

that is not a loss incurred as a result of Appellant’s attempt to pass a check for

$7,475.41. (I Supp. C.R. at 8).

       Appellant’s guilt was later adjudicated and the trial court incompletely orally

pronounced her sentence as follows: “You will still owe whatever restitution

remains unpaid of the original $19,232.57 [sic] that was previously ordered.” (VII

R.R. at 7). The written judgment included restitution of $1,922.57. (I C.R. at 92).

                       SUMMARY OF THE ARGUMENT

       ISSUE THREE: The restitution ordered in the judgment must be deleted

because it constitutes a void sentence since it orders restitution for a victim of an

offense for which Appellant was not charged or convicted.

       This turns out to be a case in which Appellant was convicted of one offense,

but ordered to pay restitution for another offense with which she was never

charged and of which she was never convicted. This is contrary to the restitution


                                          9
	
  
statute and the case law, and is unauthorized; therefore, this portion of her sentence

is void.

       A defendant on deferred adjudication is not sentenced unless and until he is

adjudicated guilty. Once adjudicated guilty, he is sentenced, but the original order

deferring adjudication is set aside, including any fines or restitution ordered

therein. Restitution is part of the sentence.

       When a defendant receives community supervision, he may be ordered to

pay restitution based on facts exceeding, somewhat, the terms of the charging

instrument, so long as he could have objected to the condition of community

supervision but did not, and that condition is not one the criminal justice system

finds intolerable or unconscionable.      For example, ordering restitution for an

uncharged item stolen during the same transaction as the charged items is not a

condition the criminal justice system finds intolerable. However, this law does not

apply to Appellant’s case for two reasons:        first, a condition of community

supervision is not a sentence or a part of a sentence, and here we are concerned

with the propriety of Appellant’s sentence, not her condition of community

supervision; second, the facts of Appellant’s case involve two separate forgeries

committed on two separate days, and therefore two separate transactions and

offenses, not the “same” transaction as discussed in the relevant case.




                                          10
	
  
       Instead, one of the limitations placed on restitution orders is that the

restitution must be for the charged offense. Here, the restitution is not for the

charged offense, but rather, for a separate, earlier, and uncharged offense. As such,

this restitution was unauthorized and therefore void. Because a void sentence may

be challenged at any time, this Court can now delete the restitution and affirm the

trial court’s judgment as modified.

       Indeed, had the trial judge declined to order restitution and explained its

reasons for doing so on the record, as required by statute, the trial judge’s

explanation would have been perfectly reasonable: he cannot give Appellant a

void sentence, though he could order her to pay restitution, with her agreement,

before he sentenced her.

       Another way of looking at this case is simply to say that because the victim

suffered no loss from this forgery, the victim is not owed any restitution as a result

of a conviction for this offense. That is, the factual basis is still lacking for the

restitution despite the State’s supplementation of the record.

       Any way the Court looks at this case, the restitution order cannot stand.




                                          11
	
  
                                  ARGUMENT

Standard of Review

       1. Abuse of Discretion

       The appellate court reviews challenges to restitution orders under an abuse

of discretion standard.   O’Neal v. State, 426 S.W.3d 242, 246 (Tex. App.—

Texarkana 2013, no pet.); Cartwright v. State, 605 S.W.2d 287, 288-89 (Tex.

Crim. App. 1980). A trial court abuses its discretion when it acts without reference

to any guiding rules or principles or acts arbitrarily or unreasonably, or when its

decision is so clearly wrong that it lies outside the zone of reasonable

disagreement. Gonzalez v. State, 117 S.W.3d 831, 839 (Tex. Crim. App. 2003).

Law and Analysis

       2. An Order Adjudicating Guilt Sets Aside the Order Deferring
          Adjudication, Including Any Fines or Restitution Imposed Therein

             No sentence is imposed when a defendant receives deferred

adjudication. See Davis v. State, 368 S.W.2d 368, 371 (Tex. Crim. App. 1998)

(“strictly speaking, it [deferred adjudication] is not a probated or suspended

sentence because there has not been a sentence”) (internal quotations omitted).

When “guilt is adjudicated, the order adjudicating guilt sets aside the order

deferring adjudication, including the previously imposed fine” and restitution.

Taylor v. State, 131 S.W.3d 497, 502 (Tex. Crim. App. 2004) (fine); Alexander v.

State, 301 S.W.3d 361, 364 (Tex. App.—Fort Worth 2009, no pet.) (restitution).
                                        12
	
  
This is because restitution is punishment and thus part of the sentence that is set

aside. Weir v. State, 278 S.W.3d 364, 366 (Tex. Crim. App. 2006); Ex parte

Cavazos, 203 S.W.3d 333, 338 (Tex. Crim. App. 2006) (orig. proceeding).

                                                           3. A Condition of Community Supervision May Exceed, Somewhat, the
                                                              Terms of the Charging Instrument, But Not On These Facts

                                                           In Gutierrez-Rodriguez v. State, 44 S.W.3d 21 (Tex. Crim. App. 2014), the

defendant was convicted of theft and placed on community supervision. Id. at 22.

One of the conditions of community supervision the trial court ordered required

her to pay restitution for items for which she was not charged with stealing. Id.

This apparently happened because the items listed in the charging instrument were

“recovered in working order” and the State agreed there was no loss. Id. at 22 and

(Cochran, J., concurring, at page 4).2

                                                           On appeal from this condition of community supervision, the defendant

argued the restitution requirement was not supported by the evidence. Id. at 22.

While the Court of Appeals agreed, the Court of Criminal Appeals decided that

Appellant forfeited her complaint by failing to object at trial. Id. at 22-24. The

high court’s reasoning was that “[c]onditions of probation that are not objected to

are affirmatively accepted as terms of the contract, unless the condition is one that

	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  
2
 Because WestlawNext does not have the concurrence, Appellant is citing the version available
on      the   website      of     the   Court    of    Criminal       Appeals.            See
http://www.search.txcourts.gov/SearchMedia.aspx?MediaVersionID=4450b3d4-f301-466f-833c-
333dcdea6a30&coa=coscca&DT=OPINION&MediaID=131b8b55-837b-4f06-b967-
7db890bdeadd.
                                                                                                                                                                                                                                                       13
	
  
the criminal justice system finds to be intolerable and is therefore not a contractual

option available to the parties.” Id. at 23. The Court concluded that “[r]equiring

restitution for stolen items that were not included in the charging instrument, but

that belonged to the complaining witnesses and were stolen during the same

transaction as the charged items, is not the sort of condition that the criminal

justice system finds intolerable or unconscionable. This is true even if appellant's

connection to the theft of these items was not specifically established, as long as

she had the opportunity to object and challenge such a connection.” Id. at 23.

Under this case, strange as it seems, the restitution ordered as a term of Appellant’s

community supervision is not improper.

       But now, Appellant’s situation is markedly different. First and foremost,

Appellant is not appealing a condition of community supervision; rather, she is

appealing her sentence, and “community supervision is not a sentence or even part

of a sentence.” Speth v. State, 6 S.W.3d 530, 532 (Tex. Crim. App. 1999). As a

result, Appellant did not affirmatively accept the terms of any “contract”, nor did

she fail to object to a “contractual option” when she was sentenced. Gutierrez-

Rodriguez, 444 S.W.3d at 23. Second, here we have two forgeries occurring on

two separate days, (I Supp. C.R. at 8), and thus two transactions, not one

transaction as in Gutierrez-Rodriguez. Id. at 23. Gutierrez-Rodriguez does not

control this case.


                                         14
	
  
                                                           4. Restitution Can Only Be Ordered, As Part of a Defendant’s
                                                              Sentence, for a Victim of the Charged Offense.

                                                           One of the three limitations on restitution is that “it may be ordered only to a

victim of an offense for which the defendant is charged.” Hanna v. State, 426

S.W.3d 87, 91 (Tex. Crim. App. 2014); Tex. Code Crim. Proc. art. 42.037(a) (“the

court…may order a defendant convicted of an offense to make restitution to any

victim of the offense”) (emphasis added); 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…Nor may a trial court,

without the agreement of the defendant, order restitution to other victims unless

their losses have been adjudicated.”); 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).3



	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  
3
  If the State argues that Appellant agreed to this restitution either by failing to object or by
pleading true to the State’s motion to revoke, it suffices to say that silence cannot be
acquiescence where a void sentence can be challenged for the first time on appeal, see Jordan v.
State, 979 S.W.2d 75, 77 (Tex. App.—Austin 1998), and agreeing that she had not met a
condition of community supervision is hardly the same as agreeing that that condition may be
lawfully imposed when her community supervision is revoked and she is sentenced to
imprisonment. Her plea of true said, in essence, “I have not paid the restitution”, but not “It is
lawful for that restitution to be imposed on me in my sentence.” In any event, Campbell only
speaks of a defendant agreeing that restitution may be imposed for other victims, not other
uncharged offenses. Campbell, 5 S.W.3d at 697.
                                                                                                                                                                                                                                                       15
	
  
       Here, the victim, Central National Bank, to whom Appellant was ordered to

pay restitution is, without a doubt, a victim of Appellant’s forgery—but not this

forgery. (I Supp. C.R. at 8) (I C.R. at 5-6). As such, ordering Appellant to pay

restitution for this offense is unlawful under Article 42.037(a) as well as Hanna,

Campbell, and Martin.

       5. A Punishment Not Authorized By Law is Void

       Restitution is punishment and part of a defendant’s sentence. Weir, 278

S.W.3d at 366; Ex parte Cavazos, 203 S.W.3d at 338. Yet, “[i]f the punishment is

not authorized by law, the order imposing punishment is void.” Rodriguez v. State,

939 S.W.2d 211, 222 (Tex. App.—Austin 1997, no pet.); Heath v. State, 817

S.W.2d 335, 336 (Tex. Crim. App. 1991) (if a judgment contains a punishment that

is not authorized by law, the portion of sentence imposing the unauthorized

punishment is void), overruled in part by Ex parte Williams, 65 S.W.3d 656, 658

(Tex. Crim. App. 2001) (unauthorized probation order did not constitute illegal

sentence; unlawful grant of probation not subject to rules that govern unlawful

sentences). Because Article 42.037(a) and the Court of Criminal Appeals only

authorize restitution for victims of the charged offense, ordering Appellant to pay

restitution—as part of her sentence following a conviction for which she is

sentenced to imprisonment, not placed on probation—for an uncharged offense is

unauthorized by law, and therefore void. Appellant may raise this for the first time


                                         16
	
  
on appeal. Jordan v. State, 979 S.W.2d 75, 77 (Tex. App.—Austin 1998) (“An

unauthorized punishment…is void and may be challenged even in the absence of a

trial objection.”). Hence this Court must vacate or delete the restitution ordered in

the judgment and affirm the judgment as modified.

       6. Two Final Points

       We might look at this case from two additional angles. First, Gutierrez-

Rodriguez is explainable because the Court of Criminal Appeals considers

community supervision to create “a sort of contractual relationship” between the

defendant and the trial court. Gutierrez-Rodriguez, 444 S.W.3d at 23. Thus the

trial court may extend to the defendant, and the defendant may accept, terms not

strictly allowable by law but which are nevertheless not “intolerable or

unconscionable.” Id. Indeed, a defendant might benefit from such terms so that

accepting them is a “wise decision”. Id. at 6 (Cochran, J., concurring). However,

when a defendant’s community supervision is revoked, he cannot be said to benefit

from the continued imposition of a term not allowed by law. Indeed, surely it is

“intolerable or unconscionable” to permit a void sentence to stand.

       A trial judge who refuses to order restitution because it would constitute a

void sentence will have to comply with Article 42.037(a), which provides that “[i]f

the court does not order restitution or orders partial restitution under this

subsection, the court shall state on the record the reasons for not making the order


                                         17
	
  
for the limited order.”      His statement here would be straightforward and

reasonable: “The law only allows me to order restitution for the victim of the

charged offense. The State did not charge this defendant with the offense for

which this victim suffered loss. Therefore, if I order restitution here, I will be

imposing a void sentence on this defendant, which our law finds repugnant.

Nevertheless, I was previously able to order the defendant to pay restitution as part

of a contract, so to speak, with the defendant. But alas, no longer.” This would

satisfy the law, but not the aggrieved victim; for that, however, the victim would

do well to look either to the legislature or to the district attorney’s office. The

legislature wrote the statute this way, and the district attorney’s office failed to

charge the defendant with the “right” offense for restitution purposes. That is not

Appellant’s fault, nor should she suffer for these choices.

       Second, perhaps another, more direct way to look at this case is simply to

ask: “How much does Appellant owe for attempting to pass a check in the amount

of $7,475.41?” Nothing, because she was caught before she received any money.

(I Supp. C.R. at 8) (“On or about November 2, 2011, the defendant presented a

check to Central National Bank for $7,475.41. The teller took the check to a

manager, as the amount was unusually high. The owner of HAP Investments was

called and confirmed that the check was a forgery. The police were called and the

defendant was arrested.”). Ordering her to pay restitution for the other check that


                                          18
	
  
she “successfully cashed”, (I Supp. C.R. at 8), is a reasonable and just decision—if

only she is actually charged with the offense of forging the other check. Tex. Code

Crim. Proc. art. 42.037(a); Hanna, 426 S.W.3d at 91. Otherwise, the restitution

ordered for this offense continues to lack a factual basis in spite of the State’s

supplementation of the record. See Campbell v. State, 5 S.W.3d 693, 696-97 (Tex.

Crim. App. 1999) and Cartwright v. State, 605 S.W.2d 287, 288-89 (Tex. Crim.

App. 1980) (“[d]ue process considerations thus implicated require that there must

be evidence in the record to show that the amount [of restitution] set by the court

has a factual basis.”). Hence, even if the Court disagrees that the sentence is void

the Court must concede that the factual basis is lacking to support the amount of

restitution owed for this forgery.

Conclusion

       No matter how we look at it, the restitution cannot stand.         Either the

restitution is unauthorized by law, and therefore void, or the restitution lacks a

factual basis in the record because it is for the wrong offense. These may be, in the

end, two ways of saying the same thing, but they lead to the same result: this

Court must delete the restitution entirely.




                                          19
	
  
                                     PRAYER

       WHEREFORE, PREMISES CONSIDERED, Appellant asks this Court to

VACATE the trial court’s judgment as to restitution and AFFIRM the judgment as

modified.

                                       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 Brief contains 3,086 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



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                         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




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