Josue Deltoro v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: February 22, 2023
• Docket: 10-22-00251-CR
• Status: Published

Opinion

IN THE TENTH COURT OF APPEALS

No. 10-22-00251-CR

JOSUE DELTORO, Appellant v.

THE STATE OF TEXAS, Appellee

From the 77th District Court Limestone County, Texas Trial Court No. 13431-A

MEMORANDUM OPINION

Josue Deltoro pled guilty to the offense of engaging in organized criminal activity,

theft of cattle. See TEX. PENAL CODE § 71.02(a). An adjudication of guilt was deferred, and

Deltoro was placed on community supervision for ten years. The State filed a motion to

adjudicate alleging nine violations of the terms of Deltoro’s community supervision.

After a hearing, the trial court adjudicated Deltoro guilty and sentenced him to 15 years

in prison.

Deltoro's appointed counsel filed a motion to withdraw and a brief in support of the motion asserting that he has diligently reviewed the appellate record and that, in his

opinion, the appeal is frivolous pursuant to the United States Supreme Court opinion in

Anders, but also presenting what counsel believed to be nonreversible error in the

judgment pursuant to this Court's order in Allison. See Anders v. California, 386 U.S. 738,

87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967); Allison v. State, 609 S.W.3d 624, 628 (Tex. App.—

Waco 2020, order). However, counsel's brief is really a brief on the merits. See Shircliff v.

State, 654 S.W.3d 788, 791 (Tex. App.—Waco 2022, no pet.).

The issue counsel presented as an issue of nonreversible error is that the trial court

was without a lawful basis to enter a special finding that Deltoro pay restitution as a

condition of parole. Restitution is punishment and is part of the sentence. See Burt v.

State, 445 S.W.3d 752, 756 (Tex. Crim. App. 2014); Ex parte Cavazos, 203 S.W.3d 333, 338

(Tex. Crim. App. 2006). As such, an error as to restitution is reversible error; that is, error

that could result in the reversal, in whole or in part, of the sentence imposed, see Cummins

v. State, 646 S.W.3d 605, 615 (Tex. App.—Waco 2022, pet. ref'd), not nonreversible error.

See Burt, 445 S.W.3d at 761 (restitution amount not pronounced resulted in remand for

punishment hearing); Cavazos, 203 S.W.3d at 338-339 (judgment with restitution

determined to be greater offense over judgment without restitution); Shircliff, 654 S.W.3d

at 791 (if fee was restitution, brief would be brief on the merits). Thus, counsel’s issue

regarding restitution is an issue of reversible error, and his brief is a brief on the merits 1

1 In this case, the State was afforded an opportunity to respond, and did respond, to counsel’s restitution issue. See Cummins v. State, 646 S.W.3d 605, 615 (Tex. App.—Waco 2022, pet. ref'd) (State is expected to file a response addressing the merits of the nonreversible error presented).

Deltoro v. State Page 2 rather than an Anders brief. See Shircliff, 654 S.W.3d at 791.

In this case, the trial court orally pronounced restitution as a condition of parole at

Deltoro’s sentencing hearing. Deltoro raised no objection to that pronouncement.

Challenges to restitution orders must be raised in the trial court to preserve them for

appellate review. Garcia v. State, No. PD-0025-21, 2022 Tex. Crim. App. LEXIS 129, at *11

(Crim. App. Mar. 2, 2022) (publish). Because Deltoro did not object to the restitution

ordered, though he had the opportunity to do so, he has forfeited his complaint on

appeal. 2 Id.

Accordingly the trial court’s Judgment Adjudicating Guilt is affirmed.

TOM GRAY Chief Justice

Before Chief Justice Gray, Justice Johnson, and Justice Smith Affirmed Opinion delivered and filed February 22, 2023 Do not publish [CR25]

2 Deltoro contends the restitution order makes the judgment void; thus, he may raise the issue for the first time on appeal. However, restitution orders cannot make a sentence illegal. See Burg v. State, 592 S.W.3d 444, 451 (Tex. Crim. App. 2020)

Deltoro v. State Page 3