Sharon Lynn Anderson v. State ( 1994 )

IN THE COURT OF APPEALS, THIRD DISTRICT OF TEXAS,

AT AUSTIN









NO. 3-92-521-CR





SHARON LYNN ANDERSON,

APPELLANT

vs.





THE STATE OF TEXAS,

APPELLEE

FROM THE DISTRICT COURT OF TRAVIS COUNTY, 167TH JUDICIAL DISTRICT

NO. 0922535, HONORABLE BOB JONES, JUDGE PRESIDING

Appellant entered a negotiated plea of guilty to the offense of forgery. See Tex. Penal Code Ann. § 32.21 (West 1989). The trial court deferred adjudication of guilt, placing appellant on probation for a term of ten years, and ordered appellant to pay restitution in the amount of $40,291.87. Appellant's five points of error are directed to the trial court's ordering appellant to pay restitution in the amount of $40,291.87 as a condition of probation. We will set aside the punishment and remand the cause to the trial court for a new hearing on punishment.

At the outset, we address the State's contention that this Court is without jurisdiction over this appeal because appellant's notice of appeal was untimely filed. Appeal is perfected when notice of appeal is filed within thirty days after the day sentence is imposed or suspended in open court or the day an appealable order is signed by the trial court. See Tex. R. App. P. 41(b)(1).

The trial court deferred adjudication of guilt on August 6, 1992. Appellant's notice of appeal, dated September 2, 1992, does not reflect the date it was filed in the district clerk's office. However, transmittal of appellant's notice of appeal to this Court shows that it was received by the district clerk on September 23, 1992. Pursuant to the requirements of Rule 41(b)(1), notice of appeal was due to be filed not later than September 5, 1992, which was a Saturday. Monday, September 7, 1992, was a legal holiday (Labor Day). The next day that was neither a Saturday, Sunday or legal holiday was Tuesday, September 8, 1992. See Tex. R. App. P. 5(a).

Attached to appellant's brief is the affidavit of Noemi Infante, identified in the affidavit as the secretary to appellant's counsel of record in the instant cause. The affiant states that she has examined the letters, the notice of appeal, the designation of the record and the two "green cards" attached to the affidavit, and that each of these documents is a true and correct copy of the original document "in the files of this office," and except as to the "green cards," is a true and correct copy of the documents that she prepared and sent by certified mail, return receipt requested, to the Travis County District Clerk's Office on September 2, 1992. Attached to the affidavit are letters dated September 2, 1992, notice of appeal and designation of record addressed to the Travis County District Clerk and the official court reporter for the 167th Judicial District. The letter to the court reporter contains a request for the preparation of the statement of facts. The letters purport to bear the signature of appellant's counsel of record. The copies of the United States Postal Service return receipts ("green cards") show that the certified mailings were received by the district clerk's office and the court reporter on September 8, 1992.

Subject to certain conditions, the filing of records and other papers in the appellate court as required by the rules can be established by the postmark affixed by the U.S. Postal Service. See Tex. R. App. P. 4(b). "Motions dependent on facts not apparent in the record and not ex officio known to the court must be supported by affidavits or other satisfactory evidence." See Tex. R. App. P. 19(d). In Fellowship Missionary Baptist Church v. Sigel, 749 S.W.2d 186, 188 (Tex. App.--Dallas 1988, no writ), the court stated that in the absence of a postmark, the date of mailing can be established by affidavit under Rule 19(d) in determining jurisdiction. See also Texas Beef Cattle Co. v. Green, 862 S.W.2d 812, 813 (Tex. App.--Beaumont 1993, no writ). We perceive no reason why the date of filing notice of appeal cannot be established by affidavit pursuant to Rule 19(d). We hold that the affidavit identifying copies of a United States Postal return receipt showing that the district clerk's office received notice of appeal on September 8, 1992, along with letters and documents relative to appellant's appeal, were sufficient to show that notice of appeal was timely filed and that this Court has jurisdiction of this cause.

Among the five points of error appellant asserts in contending that the trial court erred in ordering restitution in the amount of $40,291.87 is that the trial court abused its discretion. Pursuant to the plea bargain agreement, the trial court deferred adjudication for ten years subject to the condition that appellant make full restitution of all outstanding checks. Because the amount of restitution was in dispute, a hearing on this issue was set for a later date.

The trial court was furnished a PSI report at the restitution hearing that showed the total amount of checks forged by appellant totalled $42,124.22. After it was shown that appellant had paid $2,732.55 to the bank for one of the checks that had been charged back to the bank, the court purported to grant credit for this amount and ordered restitution of $40,291.87, an obvious mathematical error.

Appellant, a bookkeeper for Austin Group Architects, replaced her normal payroll checks with checks forged for greater amounts. In addition, appellant forged checks on the firm's account to pay personal bills. Barry Bubis, Vice President of Austin Group Architects, testified that the amount of $42,124.22 represented the total amount of checks forged by appellant. Bubis identified amounts of legitimate payroll checks issued appellant for the months of January 1991 through June 1991. Only one of the checks was shown to have been debited to the firm's account. In addition, checks dated November 30, 1990, July 31, 1990, July 31, 1990, July 31, 1991, and August 30, 1991, were identified as checks forged by appellant. Bubis testified that he did not know whether appellant cashed her payroll checks for these months. Appellant testified that she destroyed all of her payroll checks except for the one shown to have been debited to the firm's account. Appellant stated that she destroyed the checks issued her and forged checks in larger amounts because she felt at that time that she deserved more compensation for her work.

The State urges that the amount of restitution should represent the total amount of checks forged without regard to legitimate salary checks that were not shown to have been negotiated. The State reasons that appellant received the checks to which she was entitled; that the trial court, as the trier of facts, could disbelieve appellant's testimony that she destroyed the checks; that appellant forged checks in the amount of $42,124.22; and that Austin Group Architects had never been repaid any amount of money. The trial court ordered appellant to not cash any checks that "you may have from the -- architectural firm. If you have any of those in your possession, return those to the firm." While the record is silent, we can reasonably infer that an established architectural firm had stopped payment on any of the checks in question.

The Court of Criminal Appeals has held that trial courts are empowered, within their sound discretion, to order restitution as a condition of probation so long as the amount set by the court has a factual basis in the record and is just. Martin v. State, No. 6518-91 (Tex. Crim. App.--March 30, 1994); Cartwright v. State, 605 S.W.2d 287, 289 (Tex. Crim. App. 1980). A trial court's order as a condition of probation will not be overturned on appeal absent an abuse of discretion. See Cartwright, 605 S.W.2d at 289. The trial court has been held to have abused its discretion in failing to take into account the salvage value of recovered property taken in a burglary in setting the amount of restitution as a condition of probation. See Garza v. State, 841 S.W.2d 19, 23 (Tex. App.--Dallas 1992, no pet.).

It is undisputed that appellant was issued payroll checks that had not been debited to the injured party's account at the time of trial. Nor is there any dispute relative to appellant being entitled to the amounts represented by these checks as wages for services rendered. An order of restitution that fails to take into account the amounts of non-negotiated checks to which appellant was justly entitled would more than "make good" the injured party. See Davis v. State, 757 S.W.2d 386, 389 (Tex. App.--Dallas 1988, no pet.). The trial court's order of restitution is neither just nor supported by the factual evidence. We hold that the trial court abused its discretion in setting the amount of restitution as a condition of probation.

If the proper amount of restitution can be determined from the record, the proper remedy is to modify the amount ordered by the trial court. See Hefner v. State, 735 S.W.2d 608, 614 (Tex. App.--Dallas 1987, pet. ref'd). In the instant cause, we are unable to determine the proper amount of restitution. Bubis did not have any record nor did he know whether four of appellant's legitimate payroll checks had been cashed. The record also fails to negate the possibility that other payroll checks had been negotiated and were in transit to the injured party's bank at the time of trial.

We set aside the trial court's order in so far as it relates to punishment and remand the cause to the trial court for a new hearing on the issue of punishment.

Tom G. Davis, Justice

Before Justices Kidd, B. A. Smith and Davis^*

Reversed and Remanded

Filed: June 8, 1994

Do Not Publish

^* Before Tom G. Davis, Judge (retired), Court of Criminal Appeals, sitting by assignment. See Tex. Gov't Code Ann. § 74.003(b) (West 1988).