ACCEPTED
01-14-00900-cr
FIRST COURT OF APPEALS
HOUSTON, TEXAS
5/13/2015 11:18:48 AM
CHRISTOPHER PRINE
CLERK
No. 01-14-00900-CR
In the FILED IN
Court of Appeals 1st COURT OF APPEALS
HOUSTON, TEXAS
For the
5/13/2015 11:18:48 AM
First Judicial District of Texas
CHRISTOPHER A. PRINE
At Houston Clerk
No. 1344231
In the 180th District Court of
Harris County, Texas
FELICITY BURRIS
Appellant
v.
THE STATE OF TEXAS
Appellee
STATE’S APPELLATE BRIEF
DEVON ANDERSON
District Attorney
Harris County, Texas
CARLY DESSAUER
Assistant District Attorney
WILLIAM T. EXLEY, JR.
Assistant District Attorney
Harris County, Texas
1201 Franklin, Suite 600
Houston, Texas 77002
Tel.: 713/755-5826
Fax No.: 713/755-5809
ORAL ARGUMENT REQUESTED ONLY IF REQUESTED BY APPELLANT
STATEMENT REGARDING ORAL ARGUMENT
Pursuant to Texas Rule of Appellate Procedure 9.4(g) and Texas Rule of
Appellate Procedure 39.1, the State requests oral argument only if appellant requests
oral argument.
IDENTIFICATION OF THE PARTIES
Pursuant to Texas Rule of Appellate Procedure 38.2(a)(1)(A), a complete list of
the names of all interested parties is provided below.
Counsel for the State:
Devon Anderson District Attorney of Harris County
Carly Dessauer Assistant District Attorney on appeal
William T. Exley, Jr. Assistant District Attorney at trial
Appellant or criminal defendant:
Felicity Burris
Counsel for Appellant:
Tommy LaFon Attorney at trial and on appeal
Trial Judge:
Hon. Catherine Evans
ii
TABLE OF CONTENTS
STATEMENT REGARDING ORAL ARGUMENT .................................................... ii
IDENTIFICATION OF THE PARTIES ......................................................................... ii
TABLE OF AUTHORITIES ............................................................................................. iv
STATEMENT OF THE CASE .......................................................................................... 1
STATEMENT OF FACTS .................................................................................................. 1
SUMMARY OF THE ARGUMENT ................................................................................. 3
REPLY TO APPELLANT’S POINT OF ERROR ......................................................... 4
I. The trial court did not abuse its discretion when ordering appellant to pay
$12,146 in restitution to the complainant for the costs of demolishing the
catastrophically destroyed building. ................................................................................ 4
a. Trial court did not abuse its discretion when it included the cost of
demolishing the building because the costs were supported by the
record............................................................................................................................ 7
b. The trial court did not abuse its discretion in ordering appellant to pay
restitution for the structure’s demolition even though it had not
occurred because the record established that the complainant would
incurr the cost. ............................................................................................................. 8
c. The trial court did not abuse its discretion in assessing the cost of
demolishing the remaining structure because its order was just. ........................ 10
CONCLUSION ................................................................................................................... 13
CERTIFICATE OF COMPLIANCE .............................................................................. 14
CERTIFICATE OF SERVICE ......................................................................................... 15
iii
TABLE OF AUTHORITIES
CASES
Cabla v. State,
6 S.W.3d 543 (Tex. Crim. App. 1999) ............................................................................. 5
Campbell v. State,
5 S.W.3d 693 (Tex. Crim. App. 1999) ...............................................................5, 6, 7, 11
Cantrell v. State,
75 S.W.3d 503 (Tex. App.—Texarkana 2002, pet. ref’d) .............................................. 5
Cartwright v. State,
605 S.W.2d 287 (Tex. Crim. App. 1980) ......................................................................... 4
Drilling v. State,
134 S.W.3d 468 (Tex. App.—Waco 2004, no pet.) ............................................... 4, 5, 7
Gonzalez v. State,
117 S.W.3d 831 (Tex. Crim. App. 2003) ......................................................................... 4
LaFleur v. State,
848 S.W.2d 266 (Tex. App.—Beaumont 1993, no pet.) ............................................. 10
Lemos v. State,
27 S.W.3d 42 (Tex. App.—San Antonio 2000, pet. ref’d) .......................................... 10
Simpson v. State,
772 S.W.2d 276 (Tex. App.—Amarillo 1989, no pet.) ................................................ 10
STATUTES
TEX. CODE CRIM. PROC. ANN. art. 42.037(a) (West Supp. 2014)..................................... 5
TEX. CODE CRIM. PROC. ANN. art. 42.037(b)(1)(B) (West Supp. 2014) .......................... 6
TEX. CODE CRIM. PROC. ANN. art. 42.037(c) (West Supp. 2014) ................................ 6, 9
TEX. CODE CRIM. PROC. ANN. art. 42.037(e) (West Supp. 2014) .............................. 6, 11
TEX. CODE CRIM. PROC. ANN. art. 42.037(h) (West Supp. 2014) .................................... 5
TEX. CODE CRIM. PROC. ANN. art. 42.037(k) (West Supp. 2014) .................................... 6
TEX. CODE CRIM. PROC. ANN. art. 42.12, §11(b) (West Supp. 2014) .............................. 5
TEX. PENAL CODE ANN. §28.02(a) (West 2011) ................................................................ 5
iv
RULES
TEX. R. APP. P. 9.4(g) ............................................................................................................. ii
TEX. R. APP. P. 9.4(i). ........................................................................................................... 14
TEX. R. APP. P. 38.2(a)(1)(A) ................................................................................................. ii
TEX. R. APP. P. 39.1 ................................................................................................................ ii
v
TO THE HONORABLE COURT OF APPEALS:
STATEMENT OF THE CASE
Appellant was charged with arson (CR at 16). She entered a plea of no contest
(CR at 46-48, 53-54). The trial court deferred appellant’s adjudication and placed her
on community supervision for five years (CR at 53-54). Appellant was ordered to pay
$25,851 in restitution as an amended condition of her community supervision (1 RR
at 68; CR at 56). The court certified appellant’s right to appeal its restitution order,
and appellant filed a timely notice of appeal (CR at 63-64).
STATEMENT OF FACTS
Appellant pleaded no contest to arson and accepted a plea agreement with the
State that capped her punishment at five years deferred adjudication (CR at 46-47).
The trial court accepted this agreement, and placed appellant on community
supervision for five years (CR at 53-54).
The trial court held a hearing to determine the amount of restitution appellant
should pay as a condition of her community supervision (1 RR). James Zoe, the son
of the complainant, testified at the hearing and informed the court that the building
on the property from which appellant operated her business, Late Nite Pies, was
catastrophically destroyed by the arson (1 RR at 8, 9, 11, 12). The building could not
be occupied or used since the fire (1 RR at 12-13). The building had been gutted by
the fire, and while the exterior walls were standing, they were cracked (1 RR at 13).
1
James testified that the exterior walls “cannot be used for a future building” and noted
that there was “no way” to use them (1 RR at 13).
After the fire, the complainant had to pay $2,200 for cleaning up debris, $1,000
for securing the building in accordance with requirements of the City of Houston,
$200 for locks to secure the property, and $1,450 for boarding up the building (1 RR
at 15-18). At the time of trial, the building had not yet been torn down because the
complainant was gathering information regarding what to do with the property, and
James found it cheaper to maintain the boarded up structure than it would have been
to take care of an empty lot (1 RR at 46-47). However, James had obtained a quote
from a demolition company regarding what it would cost to take down the gutted
structure, $12,146, and testified that he was certain “without a doubt” that the
building would have to be demolished (1 RR at 18-19).
Since the building had been catastrophically destroyed by the fire, the loss was
covered by a $250,000 insurance policy (1 RR at 20). However, the insurance
company deducted $8,855 to cover the costs that the company paid directly to the
Houston Police Department for securing the building after the fire before sending the
remaining amount, $241,145, to the complainant (1 RR at 23-24). However, the
complainant had to pay income taxes for over $68,000 on the insurance proceeds as
the structure was a complete loss (1 RR at 26, 28, 29, 34, 35-36).
James testified that if the complainant would have sold the property as it was
before the fire, he expected the market value to be a lot more than $250,000, but due
2
to the difference between market value and the depreciation of the building, which
had been built in the 1920s, the most money the complainant could get from an
insurance policy was $250,000 (1 RR at 22, 37). The value of the land had increased
since the fire, but had the building not been a total loss from the fire, the property
would have been worth even more with the intact building (1 RR at 38, 39).
Also at the hearing, appellant provided the trial court with two affidavits
attesting to her financial situation and a third mentioning her health problems (1 RR
at 57; Def. Ex. 1, 2, 3). In her own affidavit, appellant informed the court that she
was going through bankruptcy proceedings (Def. Ex. 1).
After hearing this evidence, the trial court ordered appellant to pay $25,851 in
restitution based on the facts that the complainant had to pay $2,200 for cleaning up
debris from public property, $1,000 for securing the building after the fire in
accordance with requirements of the City of Houston, $200 for locks to secure the
property, $1,450 for boarding up the building after the fire, $12,146 for demolishing
the damaged walls, and $8,855 for the costs of the Houston Police Department
securing the smoldering property immediately after the arson (1 RR at 67-68, 78).
SUMMARY OF THE ARGUMENT
The trial court did not abuse its discretion when including the cost of
demolishing the remains of the catastrophically destroyed building in the amount of
restitution appellant should pay as a condition of her community supervision because
3
the record factually established the amount and need for the cost and the trial court’s
restitution order was just.
REPLY TO APPELLANT’S POINT OF ERROR
I. The trial court did not abuse its discretion when ordering appellant to pay
$12,146 in restitution to the complainant for the costs of demolishing the
catastrophically destroyed building.
The trial court did not abuse its discretion when including $12,146 for the cost
of demolishing the destroyed structure in the amount of restitution appellant has to
pay as a condition of her community supervision. The amount and need for the cost
was supported by the record, as was evidence regarding appellant’s inability to pay the
actual loss sustained by the complainant because of the arson. Because the trial court
did not abuse its discretion, the court’s restitution order should be upheld.
Standard of Review
Challenges to restitution orders are reviewed under an abuse-of-discretion
standard. Cartwright v. State, 605 S.W.2d 287, 288-89 (Tex. Crim. App. 1980); Drilling v.
State, 134 S.W.3d 468, 469 (Tex. App.—Waco 2004, no pet.). An abuse of discretion
occurs when a trial court’s 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); Drilling, 134 S.W.3d at 469-70.
A trial court is given broad discretion when granting restitution. Drilling, 134
S.W.3d at 470. However, due process requires three restrictions on the restitution a
4
trial court may order: (1) the amount must be just and supported by a factual basis
within the record, (2) the restitution ordered must be only for the offense for which
the defendant is criminally responsible, and (3) the restitution ordered must be proper
only for the victim or victims of the offense with which the offender is charged.
Campbell v. State, 5 S.W.3d 693, 696-97 (Tex. Crim. App. 1999); Drilling, 134 S.W.3d at
469-70; Cantrell v. State, 75 S.W.3d 503, 512 (Tex. App.—Texarkana 2002, pet. ref’d);
see Cabla v. State, 6 S.W.3d 543, 546 (Tex. Crim. App. 1999).
Applicable Law
A person commits the offense of arson if she starts a fire with the intent to
destroy or damage the property of another either with the knowledge that the fire is
located on property belonging to another or that the fire has located within it property
belonging to another. TEX. PENAL CODE ANN. §28.02(a) (West 2011).
Article 42.037(a) of the Code of Criminal Procedure allows the trial court that
sentences a defendant to an offense to order that defendant to make restitution to the
victim of the offense. TEX. CODE CRIM. PROC. ANN. art. 42.037(a) (West Supp.
2014). The court may also impose upon a defendant placed on community
supervision the requirement that the defendant pay restitution. TEX. CODE CRIM.
PROC. ANN. art. 42.037(h) (West Supp. 2014); TEX. CODE CRIM. PROC. ANN. art.
42.12, §11(b) (West Supp. 2014).
When a court determines the amount of restitution, the State bears the burden
of demonstrating the amount of loss sustained by the victim as a result of the offense
5
while the defendant has the burden of demonstrating her financial resources, financial
needs, and dependents. TEX. CODE CRIM. PROC. ANN. art. 42.037(k) (West Supp.
2014). In determining the amount of restitution, the court must consider “the
amount of loss sustained by any victim” and “other factors the court deems
appropriate.” TEX. CODE CRIM. PROC. ANN. art. 42.037(c) (West Supp. 2014). When
the court calculates the amount of restitution for an offense that resulted in the
damage or destruction of property that is impossible to return, the court may order
the defendant to pay the value of the property on the date of the destruction, or the
value of the property on the date of sentencing, less the value of any part of the
property that is returned. TEX. CODE CRIM. PROC. ANN. art. 42.037(b)(1)(B) (West
Supp. 2014). The court’s order of restitution must be “as fair as possible to the
victim” of the defendant’s offense but also must be “just.” TEX. CODE CRIM. PROC.
ANN. art. 42.037(e) (West Supp. 2014); Campbell, 5 S.W.3d at 696.
Analysis
The trial court did not err when it included the cost of demolition for the
destroyed structure in the amount of restitution appellant had to pay as a condition of
her community supervision even though the complainant had not yet paid that cost
because the amount and need for the cost was factually supported by the record. As
the trial court ordered appellant to pay limited amount of restitution for the
complainant’s expenses directly arising out of appellant’s offense of arson, the trial
court did not abuse its discretion.
6
a. Trial court did not abuse its discretion when it included the cost of
demolishing the building because the costs were supported by the
record.
Firstly, the amount of restitution the court ordered appellant to pay for the cost
of demolishing the burnt building was factually supported by the record. See Campbell,
5 S.W.3d at 696; Drilling, 134 S.W.3d at 469-70. As the record shows, the $12,146 for
demolition costs was discussed during James testimony as well as documented in
State’s Exhibit 3 (1 RR at 18-19; State’s Ex. 3). James testified that Cherry
Demolition had provided an estimate for the costs of tearing down the exterior walls,
removing the debris, and clearing the lot (1 RR at 18-19). James informed the trial
court that the estimate was lower than he expected to get if he obtained a new
estimate at the time of the hearing but assured the court that he expected the
destroyed structure to be demolished “[w]ithout a doubt” (1 RR at 19).
Indeed, in his other testimony, James described how the building was
“destroyed,” “gutted,” and was “a catastrophic loss;” he explained to the court how
the complainant was only able to rent the parking lot of the property because the
building was unusable in its current state (1 RR at 12-13, 36, 37, 43, 46). While James
testified that the four walls of the building were standing, he told the court that they
were cracked, that they “could not be used for a future building,” and that there was
“no way to use those walls” (1 RR at 13). James acknowledged that the decision
regarding what to do with the building had not yet been made, but his testimony
7
made clear that the complainant faced a choice between clearing the property of the
destroyed building alone or rebuilding a new building on the property which would
also require demolition of the existing structure (1 RR at 13, 18-19, 42, 46).
Because the record established that the complainant would have to pay to
demolish the remaining walls and documented that the cost for that work would be at
least $12,146, the trial court did not abuse its discretion in assessing appellant with a
condition of community supervision that included paying $12,146 in restitution for
the cost of demolition that was supported by the record. As the amount was factually
supported by the record, the trial court did not abuse its discretion.
b. The trial court did not abuse its discretion in ordering appellant to pay
restitution for the structure’s demolition even though it had not occurred
because the record established that the complainant would incur the
cost.
Secondly, despite the fact that the cost of demolition was factually supported
by the record, appellant points to the fact that the demolition—and its expense—had
not yet occurred and to James’ testimony that the complainant was carefully
considering what to do with the structure given that the building had been
grandfathered out of new code restrictions as reasons for why the trial court abused
its discretion (1 RR at 18-19, 47). Appellant claims that since this cost had not yet
occurred, it was not a loss and the trial court unjustly enriched the complainant by
ordering appellant to cover the cost. However, in making this argument, appellant
8
overlooks the evidence in the record supporting the trial court’s ruling that the costs
would be incurred.
Mentioned above, the court heard James explain that the walls of the structure
were cracked and “could not be used for a future building” because of the fire (1 RR
at 13). He asserted that the demolition costs would eventually occur “without a
doubt” (1 RR at 19). James further testified that while the demolition had not
occurred because the complainant was exploring what to do with the property, “a new
building will be put up. It is just we are not sure of what options we have, so we are
trying to get these options and then make logical decisions and go forward” (1 RR at
47). Given his testimony, the trial court did not abuse its discretion in determining
that the work would occur. Indeed, the trial court even stated on the record that it
believed that “the demolition work is a direct consequence of the arson. It is just like
if somebody broke a window getting into a house, whether you sweep it up now or
eventually, it has to be done” (1 RR at 67). Even though complainant had not yet
paid the cost, it was certain that the complainant would have to pay for the gutted
structure to be demolished for at least $12,146. Thus, the trial court did not abuse its
discretion in including the amount in its restitution order.
Additionally, the trial court did not err in ordering appellant to pay restitution
for a cost that had not yet been incurred by the complainant as other courts have
assessed such “future costs” in their restitution orders. For example, the Forth Court
of Appeals upheld a trial court’s restitution order requiring the defendant to
9
“[s]ubsidize the decedent’s family due to loss of income” for a total of $21,205. Lemos
v. State, 27 S.W.3d 42, 49 (Tex. App.—San Antonio 2000, pet. ref’d). The Court in
Lemos stated that “the lost earnings of the [complainant] were a proper subject of the
restitution order. Lemos, 27 S.W.3d at 49; see also LaFleur v. State, 848 S.W.2d 266, 268
(Tex. App.—Beaumont 1993, no pet.) (noting that the court ordered LaFleur to pay
for the present and future medical expenses incurred by a victim connected to his
offense; however, the issue of whether the future medical expenses were factually
supported by the record was not raised directly on appeal). Similarly, in Simpson v.
State, the Seventh Court noted that the trial court was within its discretion to order the
defendant to pay restitution for the complainant’s future psychological counseling and
medical costs if supported by the record. Simpson v. State, 772 S.W.2d 276, 279-80
(Tex. App.—Amarillo 1989, no pet.). However, as the record did not provide any
factual support for the amount of restitution set by the court, the Seventh Court
deleted the amount from Simpson’s restitution order. Simpson, 772 S.W.2d at 280.
This case is distinguishable from Simpson in that the amount of restitution the court
ordered appellant to pay is supported in the record. As such the trial court did not
abuse its discretion.
c. The trial court did not abuse its discretion in assessing the cost of
demolishing the remaining structure because its order was just.
Finally, the trial court did not abuse its discretion in ordering appellant to pay
restitution that included the cost of tearing down the remaining structure destroyed by
10
the fire because the amount of restitution was just to both the complainant and
appellant. See Campbell, 5 S.W.3d at 696 (“The amount of restitution must be just.”).
As the court’s restitution order must be “as fair as possible to the victim” of the
offense, the court included all of the direct costs arising out of appellant’s offense. See
TEX. CODE CRIM. PROC. ANN. art. 42.037(e) (West Supp. 2014). However, the trial
court did not require appellant to pay an amount close to the value of the building
before it was destroyed by her arson. See TEX. CODE CRIM. PROC. ANN. art.
42.037(b)(1)(B) (West Supp. 2014) (“If the offense results in [the] destruction of
property of a victim of the offense, the court may order the defendant […] to pay an
amount equal to the greater of the value of the property on the date of the […]
destruction.”). Despite testimony from James that the building would have been
worth well over $250,000 before the fire and informing the trial court of the
substantial amount of income tax the complainant had to pay because the building
was catastrophically destroyed by the fire, the trial court ordered appellant to pay a
fraction of its vale in restitution (1 RR at 22, 26, 27, 37). While not explicitly stated on
the record, the trial court may have considered the evidence appellant presented
regarding her financial situation and her dependent when ordering appellant to pay
the lowest amount of restitution for the loss sustained by the complainant (Def. Ex.
1). Indeed, the court acknowledged at the conclusion of the hearing that appellant’s
restitution was minimal for her offense when the court told appellant, “to be on
deferred for arson for torching somebody’s building and having a restitution amount
11
of $25,000, is quite low” (1 RR at 68). The court’s words may indicate that it wanted
appellant to be aware that her restitution order was minimal in light of the loss
suffered by the complainant. With appellant paying $12,146 in restitution for the cost
of tearing down the remaining burnt structure instead of an amount near the value of
the building, the trial court did not abuse its discretion in ordering a just amount.
Furthermore, its restitution order would not cause the complainant, who lost a
building worth well over the $250,000, to be unjustifiably enriched by having the
expense of the building’s demolition covered by appellant’s restitution.
Because the trial court’s restitution order justly covers the complainant’s direct
expenses but yet indicates that the court considered the evidence introduced at the
hearing that put into question appellant’s ability to pay a substantial amount, the trial
court did not abuse its discretion. As such, this Court should uphold its restitution
order and overrule appellant’s sole point of error.
12
CONCLUSION
The State of Texas respectfully urges the Court to overrule appellant’s point of
error and affirm the trial court’s restitution order.
DEVON ANDERSON
District Attorney
Harris County, Texas
/s/ Carly Dessauer
____________________________________________________________________________________________________________________________________________________________________________________
CARLY DESSAUER
Assistant District Attorney
Harris County, Texas
1201 Franklin, Suite 600
Houston, Texas 77002
(713) 755-5826
State Bar No. 24069083
dessauer_carly@dao.hctx.net
curry_alan@dao.hctx.net
13
CERTIFICATE OF COMPLIANCE
The undersigned attorney certifies that this computer-generated document has
a word count of 3,089 words, based upon the representation provided by the word
processing program that was used to create the document. TEX. R. APP. P. 9.4(i).
/s/ Carly Dessauer
____________________________________________________________________________________________________________________________________________________________________________________
CARLY DESSAUER
Assistant District Attorney
Harris County, Texas
1201 Franklin, Suite 600
Houston, Texas 77002
(713) 755-5826
State Bar No. 24069083
14
CERTIFICATE OF SERVICE
The State will serve a copy of the foregoing instrument to appellant’s attorney
though TexFile:
Tommy LaFon
Attorney at Law
1244 Heights Blvd.
Houston, Texas 77008
tomlafon@aol.com
/s/ Carly Dessauer
____________________________________________________________________________________________________________________________________________________________________________________
CARLY DESSAUER
Assistant District Attorney
Harris County, Texas
1201 Franklin, Suite 600
Houston, Texas 77002
(713) 755-5826
State Bar No. 24069083
Date: May 13, 2015
15