ACCEPTED
03-15-00043-CR
4863353
THIRD COURT OF APPEALS
AUSTIN, TEXAS
4/13/2015 1:37:20 PM
JEFFREY D. KYLE
CLERK
No. 03-15-00043-CR
IN THE COURT OF APPEALS FILED IN
3rd COURT OF APPEALS
FOR THE THIRD JUDICIAL DISTRICT OF AUSTIN, TEXAS
TEXAS AT AUSTIN, TEXAS 4/13/2015 1:37:20 PM
JEFFREY D. KYLE
Clerk
********
KODY BROXTON
VS.
THE STATE OF TEXAS
********
ON APPEAL FROM THE 264th DISTRICT COURT
OF BELL COUNTY, TEXAS
Cause No. 71838
******
STATE’S BRIEF and MOTION TO DISMISS
******
HENRY GARZA
DISTRICT ATTORNEY
BOB D. ODOM
ASSISTANT DISTRICT ATTORNEY
P.O. Box 540
Belton, Tx 76513
(254) 933-5215
FAX (254) 933-5704
DistrictAttorney@co.bell.tx.us
SBA No. 15200000
Oral Argument Not Requested
1
TABLE OF CONTENTS
ITEM PAGE
Index of Authorities ……………………………………………………………….. 3
Statement Regarding Oral Argument ……………………………………… 5
Statement of the Case …………………………………………………………….. 5
Motion to Dismiss Appeal ………………………………………………………. 6
Facts ……………………………………………………………………………. 6
Argument ……………………………………………………………………. 7
Statement of Facts ………………………………………………………………… 8
Summary of State’s Argument ……………………………………………….. 10
Argument and Authorities …………………………………………………….. 11
Issue on Appeal …………………………………………………………… 11
TRIAL COURT ABUSE DISCRETION IN
ORDERING PAYMENT OF RESTITUTION
NOT REQUESTED BY VICTIM OR STATE?
Standard of Review ……………………………………………. 11
Application and Analysis ……………………………………. 11
Prayer …………………………………………………………………………………. 20
Certificate of Compliance with Rule 9 ……………………………………. 20
Certificate of Service …………………………………………………………….. 21
2
INDEX OF AUTHORITIES
CASES PAGE
Cartwright v. State, 605 S.W.2d 287 ………………………………………… 11-12
(Tx. Cr. App. 1980)
Dears v. State, 154 S.W.3d 610 ………………………………………………… 7
(Tx. Cr. App. 2005)
Hanna v. State, 426 S.W.3d 87 ………………………………………… 13-14, 16, 18
(Tx. Cr. App. 2014)
James v. Commission for Lawyer Discipline, 310 S.W. …………………. 17-18
3d 598 (Tx. App. Dallas 5th Dist. 2010 no writ)
In the Matter of M.H., 662 S.W. 2d 764 ………………………………………. 15-16
(Tx. App. Corpus Christi 13th Dist. 1983 no writ.)
Montgomery v. State, 810 S.W.2d 372 ………………………………………. 11
(Tx. Cr. App. 1991)
Shankle v. State, 119 S.W. 3d 808 ……………………………………………… 7-8
(Tx. Cr. App. 2003)
Velez v. State, No. 04-11-00563-CR, 2012 Tex. App. ….……………….. 7
LEXIS 6486 (Tx.App. San Antonio 4th District 2012 no. pet.),
not designated for publication.
OTHER
Texas Code of Criminal Procedure
Article 1.26 ……………………………………………………………………… 13
Article 42.037 …………………………………………………………… 14, 16-18
Article 42.037(a) …………………………………………………………….. 12-13
3
Texas Family Code
Section 54.04(d)(1)(D) ……………………………………………………. 16
Texas Rules of Appellate Procedure
Rule 25.2 ………………………………………………………………………… 7
Rule 25.2(a)(2) ……………………………………………………………….. 8
Texas Rules of Civil Procedure……………………………………………………. 15
Texas Rules of Disciplinary Procedure ………………………………………… 17
4
STATEMENT REGARDING ORAL ARGUMENT
The State does not request oral argument.
STATEMENT OF THE CASE
The Appellant, Kody Lee Broxton, was charged by indictment with
two counts of theft of metal casings of a value of less than $20,000.00
from Kevin Canfield, the owner. (CR-4). He entered a plea of guilty.
(RR2-6).
Although the court and the Appellant stated in court that there
was no plea bargain with the State (RR2-7) and the trial court later so
certified (CR-27), the Written Plea Agreement signed by the Appellant
and approved by his counsel, the State and the court indicated that the
State agreed to recommend that the sentence in this case would run
concurrent with the sentences in three other cases (CR-19). The trial
court noted that the State and defense has “struck a deal” that all of the
sentences would run concurrently and not be stacked. (RR3-56). The
court followed that agreement. (RR3-58).
The trial court found the Appellant guilty and assessed
punishment at 2 years in State Jail and ordered payment of restitution in
the amount of $30,000.00. (CR-54; RR3-56, 57).
5
The Appellant filed motions for new trial (CR-39, 46) which were
apparently overruled by operation of law. He gave timely notice of
appeal (CR-29) and the trial court certified his right to do so. (CR-27).
MOTION TO DISMISS APPEAL
FACTS
In this case the State did not make a recommendation as to the
specific number or years to which the Appellant would be sentenced;
however, it did agree to recommend that the sentence “run concurrent”
with the sentences in three additional cases, cause numbers 73,310,
73,309, and 73,3111 (CR-19). This agreement was signed and
acknowledged to be true and correct by the Appellant (CR-24, 25). It
was also approved by his counsel (CR-25), and by the State (CR25), and
by the trial court. (CR-26).
Although during the hearing the court stated that there was no
plea bargain and the Appellant agreed (RR2-7), at the time of sentencing
the trial court stated:
“(THE COURT): you have, it appears from looking at the
plea papers, struck a deal with the State through your
lawyer that they would all run concurrently with each
other as opposed to doing these individually and being
stacked.” (RR3-56).
1
These three cases are now before this court in Cause Numbers 73309, 73310 and 73311.
6
In keeping with the agreement the court then sentenced the Appellant
“to run concurrently”. (RR3-57). The written judgment of the trial court
also specifically provided that the sentence in this cause would run
concurrently with cause numbers 73309, 73310, and 73311. (CR-48).
Nevertheless, in its Certificate of Defendant’s Right to Appeal the
trial court stated that this was not a plea bargain case. (CR-27).
Argument and Motion
An appellate court must compare the certification of the right to
appeal with the record and, where the certificate is in error, act
accordingly. Dears v. State, 154 S.W. 3d 610, 615 (Tx. Cr. App. 2005).
Where the State agreed to concurrent sentences in the underlying case
and two companion cases there was a “charge bargain” that constituted
a plea bargain. Velez v. State, No. 04-11-00563-CR, 2012 Tex. App. LEXIS
6486 (Tx. App. San Antonio 4th Dist. 2012, no pet.), not designated for
publication. Charge bargaining affects punishment as it effectively caps
punishment at the maximum sentence for the charge and is an
agreement as to punishment under Rule 25.2 of the Texas Rules of
Appellate Procedure. Shankle v. State, 119 S.W.3d 808, 812-13 (Tx. Cr.
App. 2003).
7
Rule 25.2(a)(2) limits the right of the defendant of appeal in a plea
bargain case, where the agreement is followed, to matters raised by
written pretrial motions or with the permission of the trial court.
In this case there was a written agreement that the sentence was
be served concurrently with those in the three companion cases. The
trial court expressly recognized the existence of that agreement and
followed its terms, effectively capping the sentence in the case. There
was a plea bargain and the trial court’s certificate was in error.
Accordingly this court is without jurisdiction to consider this appeal and
the State respectfully moves the court to dismiss the appeal for want of
jurisdiction. Shankle at 814.
STATEMENT OF FACTS
The sole issue on appeal is whether or not the trial court has the
discretion to order the payment of restitution where the victim and the
State do not request it. The Appellant does not contest the amount of
restitution and the facts of the case are, therefore, not pertinent to the
issue before the court. Thus, the State will recite only those facts
pertaining to that issue.
8
During the punishment hearing, the victim named in the
indictment, Kevin Canfield, testified that he was the human resources
manager for Delta Centrifugal company in Temple, Texas and that his
business had been victimized by a series of thefts of valuable high grade
metals. (RR3-6, 7). Canfield had apprehended the Appellant and two co-
defendants in the act of stealing the metal. (RR3-8-10).
After testifying about the value of the lost metal, Canfield was
asked by the Appellant’s counsel about restitution and responded: “I
don’t believe we are asking the Court for restitution. We are asking
punishment and jail time.” (RR3-19).
Robert Rose, the president of Delta Centrifugal, was asked if he
was interested in the Appellant paying the money back. He said “I don’t
know that he really has the means to pay it back. I’m more interested in
doing jail time for the theft.” (RR3-22). Later, Mr. Rose clarified his
position. “If I thought he really had the means, I would probably seek
restitution. But I don’t really believe that he has the means. I have no
basis of that but I just don’t feel like that’s a possibility”. (RR3-25).
The Appellant, however, testified that he fully expected to pay
restitution and make everything right (RR3-31) and promised to seek a
second job in order to do it. (RR3-32).
9
During his argument on punishment, Appellant’s counsel urged
the court to determine the amount of restitution based upon the
evidence. (RR3-53).
State’s counsel, in urging the court to reject the Appellant’s plea
for community supervision, made the statement that he should pay for
what he had done, not with restitution, but with his freedom for two
years in State Jail and noted that no one at Delta Centrifugal was asking
him to pay them back. (RR3-54, 55).
The trial court included in its oral pronouncement of sentence
(RR3-56, 57) and its written judgment (CR-48) that the Appellant pay
restitution in the amount of $30,000.00.
SUMMARY OF STATE’S ARGUMENT
The statements by the victim and counsel for the State do not
constitute a waiver of restitution but merely an expression of a
preference for the Appellant to serve jail time for the offense. An order
imposing restitution is within the sound discretion of the trial court and
the court may order it paid regardless of a request by the victim or the
State and such an order is not an abuse of discretion. Nothing in the
statute requires a request from the victim or acquiescence by the State
10
in order to impose restitution. The Appellant does not contest either
the amount of the restitution order or the identity of the victim of the
offense.
ARGUMENT AND AUTHORITIES
First Issue on Appeal
Did the trial court abuse its discretion in ordering the payment of
restitution to the victim even though it was not requested by the victim
or by the State?
Standard of Review
Restitution orders are reviewed under an abuse of discretion
standard. Cartwright v. State, 605 S.W.2d 287, 289 (Tx.Cr.App. 1980). A
trial court abuses its discretion only when its decision is arbitrary,
unreasonable, or is outside the zone of reasonable disagreement.
Montgomery v. State, 810 S.W.2d 372, 391, 391 (Tx. Cr. App. 1991).
Application and Analysis
The Appellant contends that both the victim and the State have
waived the imposition of restitution and, therefore, the trial court
abused its discretion in ordering its payment. He concludes that this is
apparently a case of first impression.
11
His basic premise is based first upon the characterization of the
victim and State’s statements as waivers. The victims quite clearly
stated that they were not asking the court to order restitution because
they doubted the Appellant’s ability to pay it and were most interested
in sending a message about thefts from their business through the
imposition of jail time. The State’s statement in argument to the court
was in keeping with these expressed concerns and, in rebuttal to the
Appellant’s plea for community supervision, indicated that the State was
more interested in jail time than in restitution. These preferences were
not waivers at all as they were based on doubts as to whether or not the
Appellant could or would ever pay restitution and upon the contention
that jail time was more important.
However, even if the victim and the State were considered to have
waived any claims to restitution, the question remains as to whether or
not the trial court still has the discretion to order it. A decision to order
the payment of restitution is within the sound discretion of the trial
court. Cartwright at 289. Is that discretion abused merely because the
victim or the prosecutor may not seek it for whatever reason?
Article 42.037(a), Texas Code of Criminal Procedure, provides that
the court that sentences a defendant may order the defendant to make
12
restitution to any victim of the offense. The statute, by its wording,
leaves that decision to the discretion of the court. There is no
requirement that the victim demand it or assert his or her right to it, nor
does it give the State the right to waive restitution.
In Hanna v. State, 426 S.W.3d 87 (Tx. Cr. App. 2014), the Court of
Criminal Appeals while dealing with another issue, recently wrote
concerning the nature of restitution. Restitution is a form of
punishment, but it also serves multiple purposes including the
restoration of the victim to the status quo and the forcing of the offender
to address and remedy the specific harm he has caused. The restitution
statute provides the trial court with great discretion in effectuating
opportunities for the rehabilitation of criminals, deterring future harm
and compensating victims efficiently. The trial judge has discretion
under Article 42.037(a) to order restitution to any victim of the offense.
Hanna at 91-92.
In interpreting a statue the court must look first to the plain
language of the statute in order to effectuate the intent or purpose of the
legislature in enacting the statute. The Code of Criminal Procedure is to
be liberally construed to achieve the purpose of the legislature in
preventing, suppressing and punishing crime. Article 1.26, Texas Code of
13
Criminal Procedure. The legislature intended restitution to adequately
compensate the victim of the offense in the course of punishing the
offender. Society is benefitted by such punishment that includes
restitution. Hanna at 91, 92.
The plain language of Article 42.037 states that the trial court may
order the payment of restitution to any victim of the offense. “May”
clearly indicates discretion to do so. There is nothing in the statute to
the effect that the victim must request or demand it or that the State can
waive a victim’s right to it.
The victim clearly expressed a desire to see the Appellant sent to
State jail to send a message to others who might contemplate theft from
his business. (RR3-24). Restitution as part of the punishment is in
keeping with that objective and the intention of the legislature to
prevent, suppress and punish crime and to rehabilitate the Appellant as
well as deter future harm.
The trial court’s order for the payment of restitution was well
within its discretion. The Appellant assured the court that he could and
would pay restitution and his counsel asked the court to determine a
restitution amount from the evidence. Although they were apparently
14
hoping for community supervision, that hope does not negate their plea
that restitution be imposed.
The Appellant does not contest the amount of restitution imposed
nor that Delta Centrifugal was the victim. The opinions of the victim
and the prosecutor that the Appellant would never be able to pay it and
that jail time was more important are not controlling as to the trial
court’s exercise of its reasonable discretion.
The Appellant attempts to distinguish two cases from this one
because they involve different statutes allowing the imposition of
restitution; however those cases are nevertheless instructive.
In The Matter of M.H., 662 S.W.2d 764 (Tx. App. Corpus Christi 13th
Dist. 1983 no writ), the juvenile appellant contended that the trial
court’s order for the payment of restitution was improper because there
was no specific request for restitution in the pleadings asking that she
be found a child in need of rehabilitation. Thus, she argued, the
judgment did not conform to the pleadings as required by the Texas
Rules of Civil Procedure. The court of appeals, however, held that the
Texas Family Code provided for the order of restitution upon a finding
that the child is in need of rehabilitation and that the protection of the
public and the child requires disposition. That being the case, the
15
pleadings for such a finding permitted the ordering of restitution. M.H.
at 766.
While In the Matter of M.H. did not involve Article 42.037, but
rather Section 54.04(d)(1)(D) of the Family Code, it is nevertheless
analogous. Section 54.04(d)(1)(D) allows the juvenile court to impose
restitution upon a finding of a child in need of rehabilitation. Article
42.037 provides that the court that sentences a convicted defendant
may order restitution to any victim. That victim need not be named in
the charging instrument under 42.037. Hanna at 96. Thus, just as in
M.H., the conviction of a criminal offense carries the consequence that
restitution may be imposed at the discretion of the court. That order is
not dependent upon the pleadings.
The Appellant also notes that M.H. focuses on the imposition of
restitution rather than what he characterizes as “the unequivocal
waiver” of restitution in this case. As noted above, he presupposes that
an expression by the victim and the State that they are more concerned
with sending a message by the imposition of jail time as opposed to
restitution he is unlikely to pay is a waiver. The State again contends
that such is not the case. The Appellant also distinguishes the case
because the restitution in M.H. was initially imposed when the juvenile
16
was placed on probation; however, the order was only contested after
that probation was revoked for failure to pay it.
In James v. Commission for Lawyer Discipline, 310 S.W.3d 598 (Tx.
App. Dallas 5th Dist. 2010 no writ), the appellant complained of the
commission’s order for the payment of restitution when the pleadings
had only requested judgment that the appellant be disciplined and the
commission have such other relief to which it is entitled. The Court of
Appeals noted that the Rules of Disciplinary Procedure provide that
sanctions may include restitution and the pleadings were sufficient to
include the order. The Court noted that the fact that the appellant
would be required to make restitution if the commission prevailed was
a “foreseeable consequence” of the allegations and requested relief. The
Court found no authority preventing a court from imposing restitution if
the commission did not explicitly request it in the pleadings. James at
609, 610.
Again, James does not interpret Article 42.037, however the
principles upon which it was based are similar. Article 42.037 expressly
provides that the court imposing sentence may order restitution to any
victim. Therefore, such an order is a foreseeable consequence of
conviction. Contrary to the Appellant’s assertion, there was not a
17
specific request for restitution in the commission’s pleading in James
(Appellant’s Brief at pg. 7). The lack of such a specific request was the
basis for that portion of the appeal. It also must be noted that Article
42.037 no less defines restitution as a foreseeable consequence of
conviction than the rules define it as a consequence of sanctions.
The Appellant’s assertion that no statute specifically permits the
imposition of restitution when there was no request for it or where it
was affirmatively waived (Appellant’s Brief at pg. 8) is misleading.
Article 42.037 grants the trial court the discretion to order the payment
of restitution to any victim upon conviction. That discretion is not
conditioned upon a request from the victim nor does it indicate that the
victim or the State can remove the court’s discretion by waiver.
The purpose of the statute giving the trial court discretion, while
certainly including the compensation of the victim for the harm
suffered, also contemplates effectual opportunities to rehabilitate the
offender and to deter future harm. Punishment, including restitution,
not only is intended to compensate the victim, but also to benefit
society. Hanna, supra. Article 42.037 gives the trial court the discretion
to impose restitution. It does not abuse that discretion by doing so
merely because the victim and the State see little use in it based upon
18
doubts about the possibility of payment and the desire to see jail time
assessed. While those wishes certainly may be considered, it is
respectfully submitted that they are not necessarily controlling and the
court may consider all aspects of the case in exercising that discretion.
The opinions of the victim and the prosecutor did not constitute a
waiver at all, much less an unequivocal one. The trial court also had
before it the Appellant’s own promises that he could and would make
things right by paying the restitution and his counsel’s request that the
court determine an amount of restitution to be paid from the evidence.
The order for the payment of restitution was neither arbitrary, nor
outside the scope of reasonable disagreement.
19
PRAYER
The State of Texas respectfully moves that this appeal be
dismissed for want of jurisdiction or, in the alternative, prays that the
judgment of conviction herein be, in all things, be affirmed.
Respectfully Submitted,
HENRY GARZA
District Attorney
/s/ Bob D. Odom
BOB D. ODOM
Assistant District Attorney
P.O. Box 540
Belton, Tx 76513
(254) 933-5215
FAX (254) 933-5704
DistrictAttorney@co.bell.tx.us
SBA No. 15200000
CERTIFICATE OF COMPLIANCE WITH RULE 9
This is to certify that the State’s Brief is in compliance with Rule 9
of the Texas Rules of Appellate Procedure and that portion which must be
included under Rule 9.4(i)(1) contains 2,821words.
/s/ Bob D. Odom
BOB D. ODOM
Assistant District Attorney
20
CERTIFICATE OF SERVICE
This is to certify that a true and correct copy of this brief has been
served upon, Ken Mahaffey, Counsel for Appellant, by electronic transfer
via Email, addressed to him at Ken_Maffey@yahoo.com on this 13th day
of April, 2015.
/s/ Bob D. Odom
BOB D. ODOM
Assistant District Attorney
21