Bonnie Sue Marbut v. State of Texas--Appeal from 66th District Court of Hill County

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 of our prior holding that Riewe v. State foreclosed the opportunity to amend a notice of appeal. Marbut v. State, 49 S.W.3d 585 (Tex. App. Waco 2001, no pet. h.) (citing Riewe v. State, 13 S.W.3d 408 (Tex. Crim. App. 2000); Craddock v. State, 32 S.W.3d 886, 887 (Tex. App. Waco 2000, no pet.)). // However, Marbut's Petition for Discretionary Review points out reasons why we should hear this 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). The initial indictment was filed on October 15, 1997. On the face of the indictment, the amounts are interlined and changed to $500 and $1,500, amounts charging a Class A misdemeanor. According to the clerk s record, the amended indictment was filed on July 7, 1998. The order placing her on deferred adjudication probation, filed July 8, 1998, 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. On the other hand, the judgment adjudicating her guilt, dated February 2, 2001, 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 could only have pled to a misdemeanor and be 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 in Cause No. 10-01-090-CR, dated June 13, 2001. Tex. R. App. P. 50. We also withdraw the Opinion on Petition for Discretionary Review and judgment dated August 31, 2001, and substitute this opinion therefor. // We reverse the trial court s judgment and remand the cause 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 dissents)

Opinion delivered and filed September 7, 2001

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