Case Information
*0 FILED IN 3rd COURT OF APPEALS AUSTIN, TEXAS 3/9/2015 9:52:21 AM JEFFREY D. KYLE Clerk CAUSE NO. 03-14-00616-CR THIRD COURT OF APPEALS 3/4/2015 9:52:21 AM JEFFREY D. KYLE 03-14-00616-CR AUSTIN, TEXAS *1 ACCEPTED [4362710] CLERK _________________________________________________ IN THE COURT OF APPEALS FOR THE THIRD DISTRICT OF TEXAS AUSTIN DIVISION
_________________________________________________ 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
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
*3 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
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 *5 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
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
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
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
*9 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
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.
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.
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).
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
*14 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.
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]
*16 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
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
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
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.
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 *21 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
[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.
[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.
[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.