COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-12-00484-CR
NO. 02-12-00485-CR
MARK ROTELLA APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM THE 367TH DISTRICT COURT OF DENTON COUNTY
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MEMORANDUM OPINION1
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Appellant Mark Rotella appeals from two judgments adjudicating his guilt.
We will affirm.
In May 2011, Rotella pleaded guilty pursuant to a plea bargain to theft of
property valued between $100,000 and $200,000 in cause F-2008-1771-E and to
theft of property valued between $20,000 and $100,000 in cause F-2009-1067-E.
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See Tex. R. App. P. 47.4.
See Tex. Penal Code Ann. § 31.03(e)(5), (6), (f)(3)(A) (West Supp. 2013). The
trial court deferred adjudicating Rotella’s guilt and placed him on community
supervision for ten years in both causes. One of the conditions of Rotella’s
community supervision in cause F-2008-1771-E required him to pay restitution in
the amount of $200,000, and one condition of his community supervision in
cause F-2009-1067-E required him to pay restitution in the amount of $90,000.
The State later filed a motion to proceed with an adjudication of guilt in
both causes, alleging that Rotella had failed to comply with numerous conditions
of his community supervision, including the requirement that he pay restitution.
After a hearing on the motions, the trial court found that Rotella had violated his
community supervision by, among other things, failing to pay restitution, and it
adjudicated him guilty of both offenses and sentenced him to twenty years’
confinement in cause F-2008-1771-E and ten years’ confinement in cause F-
2009-1067-E. The judgment adjudicating Rotella’s guilt in cause F-2008-1771-E
additionally ordered him to pay restitution in the amount of $172,500, and the
judgment adjudicating his guilt in cause F-2009-1067-E ordered him to pay
restitution in the amount of $87,500.
In a single issue, Rotella argues that the trial court abused its discretion by
ordering him to pay restitution in both judgments adjudicating his guilt because at
the hearing on the State’s motions to adjudicate, ―[t]here [was] no proof of any
amount, of the identity of any victim, of the nature of the loss, the type of property
stolen, or the manner in which any property was lost by any alleged victim.‖
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We review restitution orders under an abuse of discretion standard.
Cartwright v. State, 605 S.W.2d 287, 289 (Tex. Crim. App. [Panel Op.] 1980).
A trial court is subject to a number of limitations when ordering restitution.
Campbell v. State, 5 S.W.3d 693, 696 (Tex. Crim. App. 1999); see Tex. Code
Crim. Proc. Ann. art. 42.037 (West Supp. 2013). The amount of restitution must
be just, must have a factual basis within the loss of the victim, and must be for a
crime for which the offender is criminally responsible. Campbell, 5 S.W.3d at
696–97. In addition to a statement of the amount of restitution ordered, the
judgment ―shall reflect‖ either ―the name and address of a person or agency that
will accept and forward restitution payments to the victim‖ or ―if the court
specifically elects to have payments made directly to the crime victim, the name
and permanent address of the victim at the time of judgment.‖ Tex. Code Crim.
Proc. Ann. art. 42.01, § 1(25) (West Supp. 2013); see also id. art. 42.037(g)(4).
We agree with the State that the amount of restitution that Rotella was
ordered to pay was established when he entered a negotiated plea of guilty and
was placed on deferred adjudication. Specifically, the plea-bargain agreement in
cause F-2008-1771-E unambiguously included Rotella’s agreement to pay
restitution in the amount of $200,000, with ―$25,000 at time of plea with
payments for balance.‖ Likewise, the plea-bargain agreement in cause F-2009-
1067-E specifically included Rotella’s agreement to pay restitution in the amount
of $90,000, ―with [$]25,000.00 due on 7/15/11‖ and ―payments for balance.‖
Each order of deferred adjudication contains details regarding how much
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restitution Rotella had to pay and when he had to pay it, and as part of Rotella’s
waivers and judicial confession in both causes, he admitted that he was guilty of
the offense of theft as alleged in the indictments and ―agree[d] that the amount of
restitution determined is fair and reasonable.‖ Both indictments identified the
victims therein.
Regarding the amounts due at the time of the hearing to adjudicate, a
representative from the Denton County Probation Department testified that in
cause F-2008-1771-E, Rotella had paid $25,000 at the time of the plea and
$2,500 in July 2012, leaving a balance due of $172,500. Regarding cause F-
2009-1067-E, the representative testified that Rotella had paid $2,500, leaving a
balance due of $87,500. At the conclusion of the hearing, the trial court ordered
that ―the restitution stay in place that was previously ordered.‖ The judgments
adjudicating Rotella’s guilt, which order that ―[a]ll payments previously made to
the above assessments are ORDERED credited to the above amounts,‖
accurately reflect the amounts testified to by the representative. We therefore
hold that the record supports the amounts of the restitution orders contained in
the judgments. See Flowers v. State, No. 06-11-00006-CR, 2011 WL 3903441,
at *2 (Tex. App.—Texarkana Sept. 7, 2011, no pet.) (mem. op., not designated
for publication) (holding similarly).
The judgments adjudicating Rotella’s guilt did not indicate that the
restitution was payable to either the victims of the offenses or an agency or agent
on behalf of the victims, nor did the judgments contain any information about
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where the restitution must be sent. See Tex. Code Crim. Proc. Ann. art. 42.01,
§ 1(25). We therefore abated these causes to the trial court with instructions to
enter amended judgments that complied with article 42.01, section 1(25). The
trial court signed amended judgments, correcting the omission, and supplemental
clerk’s records containing those judgments have been filed with this court.
Rotella’s argument regarding compliance with article 42.01, section 1(25) is
therefore moot.
Accordingly, we overrule Rotella’s issue and affirm the trial court’s
judgments.
BILL MEIER
JUSTICE
PANEL: LIVINGSTON, C.J.; DAUPHINOT and MEIER, JJ.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: January 9, 2014
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