AFFIRM in part, VACATE in part, and REMAND; Opinion Filed October 7, 2013.
S In The Court of Appeals Fifth District of Texas at Dallas ──────────────────────────── No. 05-09-00116-CR ────────────────────────────
LEMUEL CARL BURT, Appellant V.
THE STATE OF TEXAS, Appellee
═════════════════════════════════════════════════════════════ On Appeal from the Criminal District Court No. 7 Dallas County, Texas Trial Court Cause No. F07-01438-Y ═════════════════════════════════════════════════════════════
OPINION ON REMAND
Before Justices Moseley, Lang-Miers, and Lewis Opinion By Justice Lang-Miers
A jury convicted Lemuel Carl Burt of misapplication of fiduciary property and assessed
his punishment at 14 years’ incarceration and a $10,000 fine. The written judgment included an
order to pay restitution. Appellant appealed the conviction and in five issues argued that the
evidence was insufficient to support the conviction, the trial court erred by denying his motion to
suppress evidence, and the restitution order was invalid because it was not orally pronounced in
his presence and because it included amounts to victims not named in the indictment. For the
following reasons, we vacate the restitution order and remand the case to the trial court for
reassessment of restitution. We otherwise affirm the trial court’s judgment.
B1B BACKGROUND
We provided a detailed recitation of the facts in this case in our opinion on original
submission and do not recount them here. Burt v. State, No. 05-09-00116-CR, 2011 WL
3211249, at *1–3 (Tex. App.—Dallas July 29, 2011) (not designated for publication), rev’d in
part, 396 S.W.3d 574 (Tex. Crim. App. 2013). A jury convicted appellant of operating a Ponzi
scheme involving real estate and defrauding investors of hundreds of thousands of dollars. At the
end of closing arguments in the punishment phase of trial, and after the jury had been retired to
consider punishment, the trial court, in appellant’s presence, asked the State to prepare a
proposed order of restitution with a memorandum to support the amount. The court stated, “You
can rely on everything that was introduced in the case. We don’t need to have a hearing on it as
far as an evidentiary hearing, but if y’all can’t come up with an agreed figure, then we will have
to have a hearing on it at some point in the future, okay? And the sooner, the better.”
The jury returned its punishment verdict, and the court accepted the verdict, dismissed
the jury, and orally pronounced appellant guilty and assessed his punishment in accordance with
the jury’s verdict. The court reminded the parties that “[t]he sooner we can get that restitution
matter taken care of, the better.” The court’s docket sheet contains an entry showing that the next
day the trial court ordered restitution in the amount of $591,785. The court also signed the
judgment that same day and attached documents to the judgment supporting the restitution
amount. The record did not reflect that the trial court held a hearing on the restitution amount,
that the parties agreed to the restitution amount, or that the restitution order was orally
pronounced in appellant’s or the State’s presence.
On original submission, we concluded that the evidence supported the conviction and that
the trial court did not err by denying appellant’s motion to suppress. As a result, we resolved
appellant’s first three issues against him. Burt, 2011 WL 3211249, at *4–9. With regard to issues
B2B four and five concerning the restitution order, we concluded that appellant had not preserved
those issues for review and declined to consider the merits of those issues. Id. at *9–10.
Appellant filed a petition for discretionary review challenging our decision on issues four
and five regarding the restitution order. The Texas Court of Criminal Appeals granted the
petition and concluded that appellant did not have an opportunity to object to the inclusion of
restitution in the written judgment and, as a result, did not forfeit his right to appeal the
restitution order. Burt, 396 S.W.3d at 578–79. The court reversed our judgment and remanded
the restitution matter to us for consideration of the merits of appellant’s issues. Id. at 579. The
court’s judgment, however, did not limit the reversal of our judgment to the restitution matter,
and, instead, reversed our judgment in its entirety. Accordingly, we adopt our analysis and
conclusions on original submission on issues one, two, and three regarding the sufficiency of the
evidence and the motion to suppress, and we affirm the trial court’s judgment on those grounds.
See Burt, 2011 WL 3211249, at *4–10.
On remand, the parties filed supplemental briefs on issues four and five concerning the
restitution order. For the following reasons, we vacate the restitution order in the trial court’s
judgment and remand the case for reassessment of restitution.
DISCUSSION
In issue four, appellant argues that the judgment should be reformed to strike the
restitution order because the trial court did not hold a hearing on restitution and did not impose
restitution in open court. He argues that the oral pronouncement of sentence and the written
judgment differ on the issue of restitution and, as a result, the oral pronouncement controls.
Appellant cites decisions from the Texas Court of Criminal Appeals and from our sister courts of
appeals to support his argument that the restitution order must be stricken from the judgment
because the trial court did not orally pronounce restitution.
B3B The State argues that the trial court orally pronounced that restitution would be required,
but did not orally pronounce the amount of restitution. It argues that “[t]he grand total amount of
restitution due in this case is not ‘punishment,’ . . . is not part of the sentence[,] . . . [and] a trial
court is not obligated to ‘pronounce’ the total amount spontaneously upon receiving the jury’s
punishment verdict[.]” For support, the State cites our unpublished opinion in Manning v. State,
No. 05-06-00422-CR, 2007 WL 2069623, at *1 (Tex. App.—Dallas July 20, 2007, no pet.) (not
designated for publication), in which we said that “restitution is not part of the sentence” and
“the trial court had no duty to orally pronounce restitution.”
Even if we assume that restitution is part of the sentence and must be orally pronounced,
we nevertheless would not vacate the restitution order and reform the judgment. Instead, we
conclude that this case is appropriate for remand to the trial court for reassessment of restitution.
See Davis v. State, 349 S.W.3d 535, 540 (Tex. Crim. App. 2011).
Appellant argues that remand is not appropriate and cites cases in which our sister courts
of appeals deleted restitution orders and modified the judgments in those cases. But those cases
are distinguishable because the trial courts did not have discussions on the record about
restitution. For example, in Scott v. State, No. 07-12-00176-CR, 2012 WL 5060030, at *1 (Tex.
App.—Amarillo Oct. 7, 2012, no pet.) (mem. op.), there was no mention of restitution during
sentencing, but the written judgment contained an order to pay restitution. In that case, the State
agreed restitution was improper and asked the court to reform the judgment to delete the order of
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AFFIRM in part, VACATE in part, and REMAND; Opinion Filed October 7, 2013.
S In The Court of Appeals Fifth District of Texas at Dallas ──────────────────────────── No. 05-09-00116-CR ────────────────────────────
LEMUEL CARL BURT, Appellant V.
THE STATE OF TEXAS, Appellee
═════════════════════════════════════════════════════════════ On Appeal from the Criminal District Court No. 7 Dallas County, Texas Trial Court Cause No. F07-01438-Y ═════════════════════════════════════════════════════════════
OPINION ON REMAND
Before Justices Moseley, Lang-Miers, and Lewis Opinion By Justice Lang-Miers
A jury convicted Lemuel Carl Burt of misapplication of fiduciary property and assessed
his punishment at 14 years’ incarceration and a $10,000 fine. The written judgment included an
order to pay restitution. Appellant appealed the conviction and in five issues argued that the
evidence was insufficient to support the conviction, the trial court erred by denying his motion to
suppress evidence, and the restitution order was invalid because it was not orally pronounced in
his presence and because it included amounts to victims not named in the indictment. For the
following reasons, we vacate the restitution order and remand the case to the trial court for
reassessment of restitution. We otherwise affirm the trial court’s judgment.
B1B BACKGROUND
We provided a detailed recitation of the facts in this case in our opinion on original
submission and do not recount them here. Burt v. State, No. 05-09-00116-CR, 2011 WL
3211249, at *1–3 (Tex. App.—Dallas July 29, 2011) (not designated for publication), rev’d in
part, 396 S.W.3d 574 (Tex. Crim. App. 2013). A jury convicted appellant of operating a Ponzi
scheme involving real estate and defrauding investors of hundreds of thousands of dollars. At the
end of closing arguments in the punishment phase of trial, and after the jury had been retired to
consider punishment, the trial court, in appellant’s presence, asked the State to prepare a
proposed order of restitution with a memorandum to support the amount. The court stated, “You
can rely on everything that was introduced in the case. We don’t need to have a hearing on it as
far as an evidentiary hearing, but if y’all can’t come up with an agreed figure, then we will have
to have a hearing on it at some point in the future, okay? And the sooner, the better.”
The jury returned its punishment verdict, and the court accepted the verdict, dismissed
the jury, and orally pronounced appellant guilty and assessed his punishment in accordance with
the jury’s verdict. The court reminded the parties that “[t]he sooner we can get that restitution
matter taken care of, the better.” The court’s docket sheet contains an entry showing that the next
day the trial court ordered restitution in the amount of $591,785. The court also signed the
judgment that same day and attached documents to the judgment supporting the restitution
amount. The record did not reflect that the trial court held a hearing on the restitution amount,
that the parties agreed to the restitution amount, or that the restitution order was orally
pronounced in appellant’s or the State’s presence.
On original submission, we concluded that the evidence supported the conviction and that
the trial court did not err by denying appellant’s motion to suppress. As a result, we resolved
appellant’s first three issues against him. Burt, 2011 WL 3211249, at *4–9. With regard to issues
B2B four and five concerning the restitution order, we concluded that appellant had not preserved
those issues for review and declined to consider the merits of those issues. Id. at *9–10.
Appellant filed a petition for discretionary review challenging our decision on issues four
and five regarding the restitution order. The Texas Court of Criminal Appeals granted the
petition and concluded that appellant did not have an opportunity to object to the inclusion of
restitution in the written judgment and, as a result, did not forfeit his right to appeal the
restitution order. Burt, 396 S.W.3d at 578–79. The court reversed our judgment and remanded
the restitution matter to us for consideration of the merits of appellant’s issues. Id. at 579. The
court’s judgment, however, did not limit the reversal of our judgment to the restitution matter,
and, instead, reversed our judgment in its entirety. Accordingly, we adopt our analysis and
conclusions on original submission on issues one, two, and three regarding the sufficiency of the
evidence and the motion to suppress, and we affirm the trial court’s judgment on those grounds.
See Burt, 2011 WL 3211249, at *4–10.
On remand, the parties filed supplemental briefs on issues four and five concerning the
restitution order. For the following reasons, we vacate the restitution order in the trial court’s
judgment and remand the case for reassessment of restitution.
DISCUSSION
In issue four, appellant argues that the judgment should be reformed to strike the
restitution order because the trial court did not hold a hearing on restitution and did not impose
restitution in open court. He argues that the oral pronouncement of sentence and the written
judgment differ on the issue of restitution and, as a result, the oral pronouncement controls.
Appellant cites decisions from the Texas Court of Criminal Appeals and from our sister courts of
appeals to support his argument that the restitution order must be stricken from the judgment
because the trial court did not orally pronounce restitution.
B3B The State argues that the trial court orally pronounced that restitution would be required,
but did not orally pronounce the amount of restitution. It argues that “[t]he grand total amount of
restitution due in this case is not ‘punishment,’ . . . is not part of the sentence[,] . . . [and] a trial
court is not obligated to ‘pronounce’ the total amount spontaneously upon receiving the jury’s
punishment verdict[.]” For support, the State cites our unpublished opinion in Manning v. State,
No. 05-06-00422-CR, 2007 WL 2069623, at *1 (Tex. App.—Dallas July 20, 2007, no pet.) (not
designated for publication), in which we said that “restitution is not part of the sentence” and
“the trial court had no duty to orally pronounce restitution.”
Even if we assume that restitution is part of the sentence and must be orally pronounced,
we nevertheless would not vacate the restitution order and reform the judgment. Instead, we
conclude that this case is appropriate for remand to the trial court for reassessment of restitution.
See Davis v. State, 349 S.W.3d 535, 540 (Tex. Crim. App. 2011).
Appellant argues that remand is not appropriate and cites cases in which our sister courts
of appeals deleted restitution orders and modified the judgments in those cases. But those cases
are distinguishable because the trial courts did not have discussions on the record about
restitution. For example, in Scott v. State, No. 07-12-00176-CR, 2012 WL 5060030, at *1 (Tex.
App.—Amarillo Oct. 7, 2012, no pet.) (mem. op.), there was no mention of restitution during
sentencing, but the written judgment contained an order to pay restitution. In that case, the State
agreed restitution was improper and asked the court to reform the judgment to delete the order of
restitution. Id. See also Berkley v. State, No. 07-11-0264-CR, 2012 WL 2873890, at *1 (Tex.
App.—Amarillo July 13, 2012, pet. dism’d) (mem. op., not designated for publication) (trial
court pronounced sentence “without any mention of restitution” and State agreed written
judgment containing restitution order should be modified to delete restitution). Similarly, in
Smith v. State, No. 12-11-00389-CR, 2012 WL 4107468, at *1 (Tex. App.—Tyler Sept. 19,
B4B 2012, no pet.) (mem. op., not designated for publication), the court of appeals sua sponte deleted
the restitution order in the written judgment because there was “no mention of restitution” during
the sentencing hearing and “the trial court did not orally order that restitution be paid[.]” And in
Henriquez v. State, Nos. 12-11-00143-CR & 12-11-00146-CR, 2012 WL 1883753, at *4 (Tex.
App.—Tyler May 23, 2012, no pet.) (mem. op., not designated for publication), the court of
appeals deleted an order of restitution in the trial court’s written judgment because the trial court
specifically stated during the sentencing hearing that it would not order restitution.
In this case, however, it is undisputed that appellant and the State knew restitution was to
be a part of the written judgment. In appellant’s presence, the trial court instructed the State to
prepare a memorandum regarding the amount of restitution it believed was proven. The court
told the parties that a hearing on restitution would be necessary only if the State and appellant
could not agree on an amount. Unlike the cases upon which appellant relies, restitution was
expressly mentioned during appellant’s sentencing hearing. When we find error that affects only
the punishment phase of trial, we “may remand the case to the trial court for the proper
assessment of punishment.” Davis, 349 S.W.3d at 539.
In issue five, appellant alternatively argues that the restitution issue must be remanded for
a hearing because the amount includes losses to victims that were not named in the indictment.
Because we are remanding this case to the trial court for reassessment of restitution, we conclude
that we do not need to decide this issue and that it is more appropriately decided by the trial court
upon hearing.
B5B CONCLUSION
We vacate the restitution order in the trial court’s judgment and remand the case to the
trial court for reassessment of restitution. In all other respects, we affirm the trial court’s
judgment.
/Elizabeth Lang-Miers/ ELIZABETH LANG-MIERS JUSTICE
Do Not Publish TEX. R. APP. P. 47.2(b)
090116F.U05
B6B S Court of Appeals Fifth District of Texas at Dallas JUDGMENT
LEMUEL CARL BURT, Appellant On Appeal from the Criminal District Court No. 7, Dallas County, Texas No. 05-09-00116-CR V. Trial Court Cause No. F07-01438-Y. Opinion on Remand delivered by Justice THE STATE OF TEXAS, Appellee Lang-Miers, Justices Moseley and Lewis participating.
Based on the Court’s opinion of this date, we VACATE the restitution order in the judgment of the trial court and REMAND the cause for reassessment of restitution. In all other respects, we AFFIRM the judgment of the trial court.
Judgment entered this 7th day of October, 2013.
B7B