Affirmed and Opinion filed November 4, 2003.
In The
Fourteenth Court of Appeals
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NO. 14-02-00822-CR
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JUSTIN CHARLES GODOY, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 184th District Court
Harris County, Texas
Trial Court Cause No. 741,773
O P I N I O N
Appellant Justin Charles Godoy entered a plea of guilty to the offense of aggravated assault. The trial court placed appellant on deferred adjudication for a period of ten years and ordered him to pay various fines, fees, and restitution in the amount of $35,817.56. After finding appellant had violated the terms of his deferred adjudication, the trial court granted the State=s motion to adjudicate guilt. Appellant was sentenced to four years= confinement and was ordered to pay restitution in the amount of $33,659.56 as a condition of parole.
In two points of error, appellant claims the trial court (1) erred in ordering appellant to pay restitution as a condition of parole because there was insufficient evidence to support the amount of restitution; and (2) abused its discretion in ordering $33,659.56 in restitution as a condition of parole because the evidence showed appellant would be unable to pay that amount due to his medical condition. We affirm.
Factual Background
Appellant was charged by indictment with the felony offenses of aggravated assault and attempted murder. He pleaded guilty to the aggravated assault charge. The trial court deferred adjudication of appellant=s guilt and placed him on ten years= community supervision. The conditions of appellant=s community supervision required him to, inter alia, pay the following amounts:
1) a supervision fee at the rate of $30 per month for the duration of his community supervision;
2) a fine of $200;
3) court costs of $126.50;
4) laboratory fees at the rate of $5 per month for the duration of his community supervision; and
5) $35,817.56 in restitution at the rate of $100 per month.
Four years later, the State moved to adjudicate appellant=s guilt and alleged several violations of the terms and conditions of his community supervision, including failing to pay restitution. At the conclusion of the hearing on the State=s motion to adjudicate, the court found the allegations of criminal mischief, failure to participate in community service, failure to pay fines and costs, and failure to pay restitution to be true. Appellant was adjudicated guilty of the original charge and sentenced to four years= confinement in the Texas Department of Criminal Justice C Institutional Division. After pronouncing his guilt and sentence, the trial judge discussed the terms of an appeal bond. During this exchange, the judge made the following statement: A[A]lso, as a condition of parole, restitution will be ordered.@ The judge then asked the Court Liaison Officer for the total amount appellant had paid toward the fines, fees, and restitution while he was on community supervision. The following discussion ensued:
Officer: The total amount paid B
The Court: On everything?
Officer: On everything, the total paid was $2,158.00.
The Court: All right. And subtract that from $35,817.56, which is the amount shown in the original PSI report.
Officer: Sorry Judge. If I may, that=s the total amount paid.
The Court: On everything?
Officer: Everything.
The Court: Okay.
Officer: But that is off. Some fees were supervisory fees.
The Court: I know, but it was a big mess. The probation officer applied the fee stuff to the restitution stuff. I=m just going to give him credit on everything for restitution since it=s such a huge amount. I can=t tell what was paid on what. So, I will give him the benefit of the doubt.
Officer: Okay.
The Court: Thank you. Therefore, it should show on the judgment, Ms. Moore, $33,659.56. Remaining amount. As a condition of parole.
An addendum was attached to the Judgment Adjudicating Guilt in which the court noted that it found Athat the parole board should require the Defendant to make restitution in the amount of $33,659.56 . . . .@[1]
Jurisdiction
The State argues that this court does not have jurisdiction to hear appellant=s complaints regarding the amount of restitution because the amount was set at the original deferred adjudication proceeding. Appellant recognizes the limitations imposed by section 5(b) of article 42.12 of the Texas Code of Criminal Procedure, but urges that this court has jurisdiction because he is complaining of an order imposed during the punishment phase of his adjudication hearing. A defendant placed on deferred adjudication community supervision may raise issues relating to the original plea proceeding, such as evidentiary sufficiency, only in appeals taken when deferred adjudication community supervision is first imposed. Manuel v. State, 994 S.W.2d 658, 661-62 (Tex. Crim. App. 1999). Likewise, no appeal may be taken from the trial court=s determination to proceed with an adjudication of guilt on the original charge. Tex. Code Crim. Proc. Ann. art. 42.12, _ 5(b) (Vernon Supp. 2003). When a trial court finds that a defendant has committed a violation as alleged by the State and adjudicates a previously deferred finding of guilt, the court must then conduct a second phase to determine punishment. Kirtley v. State, 56 S.W.3d 48, 51 (Tex. Crim. App. 2001) (citing Issa v. State, 826 S.W.2d 159, 161 (Tex. Crim. App. 1992)). Therefore, although a defendant cannot appeal the trial court=s decision to adjudicate guilt, a defendant sentenced after the adjudication of guilt can appeal aspects of the Asecond phase to determine punishment.@ Kirtley, 56 S.W.3d at 51 (allowing claim of ineffective assistance of counsel during phase directly following adjudication of guilt); Duckworth v. State, 89 S.W.3d 747, 749 (Tex. App.CDallas 2002, no pet.) (allowing complaint regarding court=s application of the penal code to the enhancement paragraphs in the indictment in order to assess punishment). In the instant appeal, appellant does not, and properly cannot, complain about the amount of or the factual basis for restitution imposed at the original plea proceeding. Because appellant=s complaint pertains to the imposition of $33,659.56 in restitution as a condition of parole, imposed after adjudication of guilt, we have jurisdiction.
Preservation of Error
The State argues that appellant has waived both of his issues by failing to object at trial. To preserve a complaint for review, the record must show that the complaint was presented to the trial court by a timely request, objection, or motion stating the grounds for the ruling sought with sufficient specificity to make the trial court aware of the complaint unless the grounds are apparent from the record. Tex. R. App. P. 33.1(a); Vidaurri v. State, 49 S.W.3d 880, 885‑86 (Tex. Crim. App. 2001). The record illustrates that appellant never contended during the punishment phase that the restitution amount was either not supported by the evidence or beyond appellant=s ability to pay.[2]
The Court of Criminal Appeals recently stated that Aif a defendant wishes to complain about the appropriateness of (as opposed to the factual basis for) a trial court=s restitution order, he must do so in the trial court and he must do so explicitly.@ Idowu v. State, 73 S.W.3d 918, 921 (Tex. Crim. App. 2002) (citations omitted). Because appellant=s second point of error, that the trial court abused its discretion in ordering restitution based on appellant=s inability to pay, is a complaint about the appropriateness of the order, his failure to object at trial waived error, if any. Id.; Lemos v. State, 27 S.W.3d 42, 49 (Tex. App.CSan Antonio 2000, pet. ref=d) (holding that failure to object at trial to order of restitution waived error). Accordingly, we overrule appellant=s second point of error.
However, the Court in Idowu went on to note that whether the record provides a sufficient factual basis for a particular restitution order could be considered an evidentiary sufficiency question that need not be preserved by objection at the trial level. Idowu, 73 S.W.3d at 922 (emphasis added). The Idowu court found appellant had not preserved error because he failed to object when restitution was imposed. Nonetheless, the court proceeded to address the merits of his claim. Likewise, we find that appellant did not preserve error because he did not object to the factual sufficiency of the restitution order during the punishment phase, but we willCout of an abundance of cautionCfollow the direction of the Court of Criminal Appeals in Idowu and review appellant=s first point of error challenging the sufficiency of the evidence to support the amount of restitution.
We review a challenge to the amount of restitution for abuse of discretion. Campbell v. State, 5 S.W.3d 693, 696 (Tex. Crim. App. 1999). There are three limits on the trial court=s discretion to order restitution. First, the amount of restitution must be just, and it must have a factual basis that is reflected in the record. Id. at 699. Second, a trial court may not order restitution for an offense for which the defendant is not criminally responsible. Id. at 697. Third, a trial court may not order restitution to anyone but the victim or victims of the offense with which the offender is charged. Id. Or, if justice dictates, the trial court may order payment to a party who has compensated the victim for the loss. Tex. Code Crim. Proc. Ann. art. 42.037(f)(1) (Vernon Supp. 2003). A trial court=s failure to set restitution within these parameters is an abuse of discretion.
Appellant only raises and briefs on appeal a complaint about the specific amount of restitution ordered by the trial court. Because appellant only challenges the amount of restitution, we need not delve into the other limitations on the trial court=s discretion to order restitution and will limit our analysis to whether the amount of restitution had a factual basis in the record. See Turner v. State, 4 S.W.3d 74, 81 (Tex. App.CWaco 1999, no pet.) (stating that to ensure appellate review, briefing should identify each specific element being challenged and provide an analysis of the appropriate legal standards and authorities with a summary of the relevant evidence for each element).
Here, the trial court imposed restitution in the amount of $33,659.56 as a condition of parole based on (1) the amount set at the original plea proceeding, which appellant is precluded from protesting here; and (2) a credit for the total payments appellant had made during his four years of community supervision. The relevant statutory provisions in effect at the time appellant was placed on deferred adjudication and when he was later sentenced required the trial court to Aenter the amount of restitution . . . owed by the defendant on the date of revocation in the judgment in the case.@ Tex. Code Crim. Proc. Ann. art. 42.12, ' 23(a); see also id. ' 42.037(f)(2) (requiring that the amount of restitution be reduced by previous payments under a former restitution order). The evidence shows that the trial court obtained from the pre-sentence investigation report the original restitution amount, which was based on information in the report and the victim=s voluminous medical records. The record also shows that appellant made payments for fines, fees, court costs, and restitution totaling $2,158.00. Appellant=s community supervision officer testified that she applied every payment he made to reduce the outstanding restitution amount. The restitution imposed after adjudication was determined by subtracting appellant=s total payments from the restitution amount established at his original plea proceeding. Because the amount of restitution it imposed as a condition of parole had a factual basis in the record, the trial court did not abuse its discretion. We overrule appellant=s first point of error.
The judgment of the trial court is affirmed.
/s/ Leslie Brock Yates
Justice
Judgment rendered and Opinion filed November 4, 2003.
Panel consists of Justices Yates, Hudson, and Frost.
Do Not Publish C Tex. R. App. P. 47.2(b).
[1] The State maintains the following language in the addendum to the judgment, AThe Court finds that the parole board should require the Defendant to make restitution . . . .@ (emphasis added), indicates the trial court was making a recommendation for restitution as opposed to an order. Although the Code of Criminal Procedure instructs the Board of Pardons and Paroles to order the payment of restitution imposed by the trial court, we need not decide whether this language constitutes a recommendation or an order. Tex. Code Crim. Proc. Ann. art. 42.037(h) (Vernon Supp. 2003). Here, appellant=s challenge is, at least in part, a challenge to the factual basis to support the amount of restitution ordered. Accordingly, it is within the jurisdiction of the appellate courts to review the amount of restitution recommended by the trial court to the parole board. See Campbell v. State, 5 S.W.3d 693, 696 (Tex. Crim. App. 1999).
[2] Although appellant=s trial counsel did raise appellant=s ability to pay as a defense in the hearing to adjudicate guilt, he did not object in the punishment phase to the trial court=s imposition of restitution as a condition of parole.