Appellant’s Motion for Leave to File Supplemental Brief Page 1 Ireland v. State ; Cause No. 03

- 14

- 00 61 6

- CR CAUSE NO. 0 3

- 1 4

- 00 61 6

- CR

_________________________________________________ IN THE COURT OF APPEALS FOR THE THIRD DISTRICT OF TEXAS AUSTIN DIVISION

_________________________________________________

ALEXIS MARIE IRELAND § §

v. § § STATE OF TEXAS §

_______________________________________________ APPELLANT’S MOTION FOR LEAVE TO FILE SUPPLEMENTAL BRIEF

_______________________________________________

Justin B radford Smith Texas Bar No. 24072348 Harrell, Stoebner, & Russell, P.C. 2106 Bird Creek Drive Te mple , Texas 7 6502 Phone: ( 254 ) 771

- 1855 FAX: ( 254 ) 771

- 2082 E mail: justin@templelawoffice.com

A TTORNEY FOR APPELLANT ACCEPTED 03-14-00616-CR 4362870 THIRD COURT OF APPEALS

AUSTIN, TEXAS 3/4/2015 9:57:44 AM JEFFREY D. KYLE

CLERKAppellant’s Motion for Leave to File Supplemental Brief Page 2 Ireland v. State ; Cause No. 03

- 14

- 00 61 6

- CR T O THE HONORABLE COURT OF APPEALS:
COMES NOW, Appellant
, ALEXIS MARIE IRELAND
, who files this

Motion for Leave to File Supplemental Brief, and shows unto the Court as follows:

I.
Appellant’s brief was due on or before January 28 , 201 5

.

II.
Appellant timely filed her brief, as did the State.

III.

After Appellant filed her brief, the State asked the district clerk to prepare
and file a supplemental clerk’s record containing the presentence investigation
report (PSI), which the district clerk did. The State also asked this Court to permit
the record to be supplemented with the PSI, and this Court granted the
supplementation. The State relies on the PSI in its brief. The PSI discloses,

however, that the restitution ordered in t his case did not constitute that which was
unpaid or unrecovered for the original forgery; rather, the restitution relates to a
totally separate, uncharged offense.
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 May 19, 2004) (unpublished); see Tex.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,Appellant’s Motion for Leave to File Supplemental Brief Page 3 Ireland v. State ; Cause No. 03

- 14

- 00 61 6

- CR Sec. 9(j) (report is confidential). Until the State asked for permission to
supplement the record with the PSI, theref ore, 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 i n 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 cha rged 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
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

restitut ion is that a trial court may not order restitution to any but the victim orAppellant’s Motion for Leave to File Supplemental Brief Page 4 Ireland v. State ; Cause No. 03

- 14

- 00 61 6

- CR 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 on ly 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 b rief may be amended or supplemented whenever justice
requires, on whatever reasonable terms the court may prescribe. ”). Certainly the
possibility that Appellant has received a void sentence is an instance of “justice
requir[ing]” a supplemental brief. Th erefore, Appellant is filing this supplementalAppellant’s Motion for Leave to File Supplemental Brief Page 5 Ireland v. State ; Cause No. 03

- 14

- 00 61 6

- CR 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

IV.
Appellant asks the Court to accept this supplemental brief for filing, and to
afford the State an opportunity to respond, whether thirty days or another deadline
of the Court’s choosing.

P RAYER
WHEREFORE, PREMISES CONSIDERED, Appellant asks this Court
grant this motion
, ac cept Appellant’s supplemental brief for filing , and give the
State an adequate opportunity to respond

.!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 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 i ncorporating all three issues into one document.Appellant’s Motion for Leave to File Supplemental Brief Page 6 Ireland v. State ; Cause No. 03

- 14

- 00 61 6

- CR R espectfully submitted:

/s/ Justin Bradford Smith Justin B radford 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 SERVICE
I hereby certify that
, on March 4 , 2015 , a true and correct copy of the
Appellan t’s Motion for Leave to File Supplemental Brief was provided to counsel

below via eservice :

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

/s/ Justin Bradford Smith Justin B radford Smith