NO. 07-03-0106-CR IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TE XAS

AT AMARILLO PANEL B MARCH 23, 2005

______________________________ TERRY R OJAS PER KINS, Appellant

v. THE STA

TE OF TEX

AS, Appellee

_________________________________ FROM THE 222 ND DISTRICT COURT OF DEAF SMITH COUNTY ; NO. CR-01J-152; HON. H. BRYAN POFF, JR., PRESIDING

_______________________________ Before JOHNSON, C.J., and QUINN and CAMPBELL, JJ. Appella nt, Terry Rojas Perkins, appeals from her convict ion of theft b y check. In doing so, she claims in one issue th at the trial court erred in denying her special pl ea of double j eopardy. We affirm the judgme nt of the trial cou rt. Background In a prior proceeding in county court, appellant was charged in Cause No. 00-0147 for the offense of theft by check from Jim Feagan on December 23, 1999, in an amount of $20 or more but less than $500. She p led guil ty, was convicted, and was placed on probation for one year. One of the terms of her probation wasthat she make restitution on2

15 insufficient checks which were identified by amount a nd person

. The State later sought to revoke her probation, and the trial court entered an agreed order on November 9, 2000, extending her probation and increasing the amount of restitution. Whe n the State again soughtto revoke her probation, she pled true to the alle ged violations, one of which was the failure to make restitution, and was sentenced on January 30, 2003, to 180 days in the county jail. In the meantime, appellant was indicted on October 18, 2 001, in the current proceeding for theft by check in 41 counts. Furthermore, the aggregate value of the property allegedly obtained through the theft was $1,500 or more but less than $20,000. Appellant

filed a special plea of doublejeopardy contending that the checks for which she was ordered to make restitution in Cause No. 00-0147 were included in the i ndictment in this cau se (No. CR-01J-152). This subjected her to being twice punished for the sam e offense, she alleged. After the trial court denied the cl aim, she pled guilty. Applicable Law We reviewa trial court’s decision to deny a double jeopardy claim under an abuse of discretion standard. Vasquez v. State, 22 S.W.3d 28, 31 (Tex. App.–Amarillo 2000, no pet.). In other words, the deci sion must fall outs ide the “ zone of re asonabl e disagr eement.” Benitez v. State, 5 S.W.3d 91 5, 918 (Tex. App.–Amarillo 1999, pet. ref’d). Moreover, in determ ining if it did, we consider issues of law de novo

. Vasquez v. State, 22 S.W.3d at 31. However, when issues of fact underlying thedecision were disputed or the resolution of those is sues dep ended up on consi deration of the cre dibilit y and demeanor of witnesses,
we must defer to the manner in which the trial court resolved those i ssues and applied the facts to th e law in volved. Id. at 31-32.1 We do not fi nd that thi s li st was bef

ore t he t rial cou rt at th e tim e th at it ru led on the plea of do ub le jeop ardy

. 3 Next, the burden is on the defendan t to come f orward with evidence in support of his allegat ion of do uble jeo pardy. Anderson v. State, 635 S.W.2 d 722, 72 5 (Tex. C rim. App. 1982); Bowen v. State, 131 S.W.3d 505, 509 (Tex. App.–Eastland 2004, pet. ref’ d); Bailey v. State, 44 S.W.3d 690, 694 (Tex. App.–Houston [14 th Dist.] 20 01), aff’d, 87 S.W.3d 122 (Tex. Crim. App. 2002). Thus, he must produce a record showing on its face that the State is attem pting to puni sh him tw ice for th e same off ense. See Gonz

alez v. S tate, 8 S.W.3d 640, 645 (Tex. Crim. App. 2000). Additional ly, if the record fails t o contai n evidence to support the plea of jeopardy, we may no t reverse the trial court’s ruling. Anderson

v. State, 635 S.W.2 d at 726. Application of Law The record includes a Restitution Breakdown that lists thedebts that appellant was required to repay as a cond ition of her proba tion. Th e breakdo wn ident ified th e entit ies and/or individuals to whom the defendant was indebted and the amount owed. However, there is no fu rther ide ntification of the debts by date or check number. Nex t, while the indictment in Cause No. CR-01J-152 mentions the name of the persons to whom the bad checks were written, nothing is said of the check number or its specific

amount. And, while
some of the names mentioned in the breakdown match some i n the indictment, not all do. Furthermore, the Breakdown of Restitution attached to the order placi ng appella nt on community

supervision in this proceeding also contains only the entity and/or person owe d and the amount , but no check number. 1 Thus, up on the re cord befo re us, thetrial co urt could have held that appellant failed to prove that the same checks were involved in both4

proceedings and, therefore, that appellant was in fact being punished twice for the same offense. And, because of that, the trial c ourt did not abuse its discretion in denying the plea. Accordingly, the judgment of the trial court is affirmed.

Per Curiam Johnson, C.J., not

particip ating. Do not publish.