ACCEPTED 03-15-00043-CR 4802624 THIRD COURT OF APPEALS AUSTIN, TEXAS 4/8/2015 10:17:15 AM JEFFREY D. KYLE CLERK No. 03-15-0043-CR
IN THE COURT OF APPEALS FILED IN 3rd COURT OF APPEALS AUSTIN, TEXAS FOR THE THIRD SUPREME JUDICIAL DISTRICT 4/8/2015 10:17:15 AM JEFFREY D. KYLE Clerk OF TEXAS
KODY BROXTON, Appellant
VS.
THE STATE OF TEXAS, Appellee
From the 264th District Court of Bell County, Texas, the Honorable Judge Martha J. Trudo, presiding
APPELLANT’S BRIEF
Ken Mahaffey Counsel for Appellant P. O. Box 684585 Austin, Texas 78768 Phone & Fax (512) 444-6557 St. Bar No. 12830050 Ken Mahaffey@yahoo.com
ORAL ARGUMENT REQUESTED ONLY IF STATE REQUESTS ARGUMENT TABLE OF CONTENTS
IDENTITY OF JUDGE, PARTIES AND COUNSEL. . . . . . . . . . . . . . . . . . . . . . . ii
INDEX OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii
STATEMENT OF PROCEDURAL HISTORY. . . . . . . . . . . . . . . . . . . . . . . . . . . . v
STATEMENT OF FACTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . vi
SUMMARY OF ARGUMENT.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . x
STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
QUESTION FOR REVIEW. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Does a trial court abuse its discretion when it orders restitution when both the victim and the State’s attorney waive that restitution and ask the court to only impose incarceration?
I. Introduction... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 II. The Statute.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 III. Standard of Review. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 IV. Issue is One of First Impression.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 V. Principal Purpose of Restitution is to Compensate Victim.. . . . . . . . . . . 4 VI. Possibly Contrary Authority Distinguished. . . . . . . . . . . . . . . . . . . . . . . 6 VII. Remedy is to Delete the Order.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 VIII. Conclusion... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
PRAYER FOR RELIEF. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
CERTIFICATE OF SERVICE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
i IDENTITY OF JUDGE, PARTIES AND COUNSEL
The following is a list of all parties to the trial court's final judgment and their
counsel in the trial court:
1. Trial Judge: Martha J. Trudo 264th District Court P.O. Box 324 Belton, Texas 76513
2. Appellant: Kody Broxton Bartlett State Jail 01972710 1018 Arnold Drive Bartlett TX 76511
3. Defense Counsel: Michael White Attorney at Law 100 Kasber Dr Temple TX 76502
4. The State of Texas: Fred Burns Bell Co. D. A.'s Office P.O. Box 540 Belton, Texas 76513
ii INDEX OF AUTHORITIES
STATE CASES:
Lemos v. State, 27 S.W.3d 42 (Tex. App. - San Antonio 2000, no pet.). . . . 3
Allen v. State, 720 S.W.2d 618 (Tex. App. - Houston [1st Dist.] 1986, pet. ref’d).. . . . . . . . . . . . . . . . . . . . . . . . . . 4
Barton v. State, 21 S.W.3d 287 (Tex. Crim. App. 2000). . . . . . . . . . . . . . . . 8
Bayonne v. State, 12-10-282-CR (Tex. App. - Tyler 2011, no pet.).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Brooks v. State, 957 S.W.2d 30 (Tex. Crim. App. 1997). . . . . . . . . . . . . . . . 5
Commission for Lawyer Discipline, 310 SW 3d 598 (Tex. App. - Dallas 2010, no writ). . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Drilling v. State, 134 S.W.3d 468 (Tex. Crim. App. 2004). . . . . . . . . . . . . . 3
Hanna v. State, 426 S.W.3d 87 (Tex. Crim. App. 2014). . . . . . . . . . . . . . . . 4
In the matter of M. H., 662 S.W.2d 764 (Tex. App. - Corpus Christi, 1983, no writ.). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Johnson v. State, 784 S.W.2d 413 (Tex. Crim. App. 1990). . . . . . . . . . . . . . 6
Martin v. State, 874 S.W.2d 674 (Tex. Crim. App. 1994). . . . . . . . . . . . . . . 4
Montgomery v. State , 810 S.W.2d 372 (Tex. Crim. App. 1990). . . . . . . . . . 3
iii STATUTES:
Art. 42.037, Tex. Code Crim. Proc. (2013).. . . . . . . . . . . . . . . . . . . . . . 2, 6, 7
Sec. 12.35 (a) & (b), Tex. Penal Code Ann. (2013). . . . . . . . . . . . . . . . . . . . 5
Sec. 31.03 (e)(4), Tex. Penal Code Ann. (2013).. . . . . . . . . . . . . . . . . . . . . . 5
RULES:
Rule 1.06Y, Tex. R. Disciplinary Conduct (2010). . . . . . . . . . . . . . . . . . . . . 7
Rule 3.03, Texas Rules of Prof. Conduct, Vol 3A, Tex. Gov't Code Ann. (2015). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Rule 43.2 (c), Tex. R. App. Proc. (West 2015) . . . . . . . . . . . . . . . . . . . . . 2, 8
iv STATEMENT OF PROCEDURAL HISTORY
Kody Broxton was indicted for theft of property more than $1500 but less than
$20,000. (CR 4). The offense was alleged to have been committed on September 8,
2013 in Bell County, Texas. (CR 4). Appellant waived a jury and entered a plea of
guilty. (RR2 7). After a sentencing hearing before a judge, appellant was convicted
and sentenced to two years state jail, concurrently. (RR3 65; CR 54). On November
21, 2014, appellant perfected an appeal to this Court. (CR 29).
Appellant was convicted in the same proceeding of four total thefts from the
same company charged in separate indictments. Trial counsel filed notices of appeal
in all four cases. Appellate counsel reviewed the reporter’s and clerk’s record in all
cases and determined the only arguable issue was a challenge to the restitution order.
This cause, 03-15-0043-CR, is the only conviction where a restitution order was
placed in the judgment. In the other causes, 03-15-0040-CR, 03-15-0041-CR and 03-
15-0042-CR, counsel has filed motions to withdraw and a brief pursuant to Anders
v. California, 386 U.S. 738, 744, 87 S.Ct. 1396, 1400, 18 L.Ed.2d 493 (1967).
v STATEMENT OF FACTS
I. Overview.
Appellant entered a plea of guilty to four indictments for theft. (RR2 6 - 7). The
only recommendation from the State in exchange for that plea was that all sentences
run concurrently. (RR2 7). The trial court heard evidence and sentenced him to two
years in all four cases running concurrently. (RR3 65). Notices of appeal were filed
in each case. The only cognizable issue in any of these cases concerns restitution
ordered in cause number 71838, now bearing appellate cause number 03-15-0043-
CR, in which this brief is filed. As stated in the procedural history, separate briefs
were filed in the other three causes pursuant to Anders v. California, 386 U.S. 738,
744, 87 S.Ct. 1396, 1400, 18 L.Ed.2d 493 (1967).
II. Facts of Offense.
For several months, Delta Centrifugal, a metal and machine shop in Bell
County, Texas, had been experiencing thefts of bulk metal from its storage yard.
(RR3 6 - 7). A hole had been cut in the fence surrounding the yard. (RR3 8). Just
before midnight on September 7, 3013, a manager for Delta Centrifugal, Kevin
Canfield, decided to make a security check of the yard. (RR3 8).
Canfield apprehended Appellant and two co-defendants taking metal from the
vi yard. (RR3 8). It appears appellant had once briefly worked for the company some
two years before the offense. (RR3 16, 27). Delta Centrifugal recovered stolen
materials from appellant’s truck. (RR3 10 - 11). Appellant took responsibility for this
theft and also confessed to three other thefts from Delta Centrifugal on dates prior to
the date he was arrested. (RR3 28).
III. Restitution Amount.
Canfield testified Delta Centrifugal had lost $64,000 dollars worth of materials
over a several month period. (RR3 16). He was unable to attribute a specific amount
to any date other than the date appellant was arrested. (RR3 16, 18). The company did
recover $7000 dollars worth of materials from appellant’s truck. (RR3 10 - 11).
Canfield agreed he could not say appellant was responsible for the other losses
included in the $64,000 dollars. (RR3 17). He also agreed it would be unfair to
require appellant to make restitution for any materials he did personally take. (RR3
17).
Delta Centrifugal’s president Robert Rose also testified. (RR3 21). Rose did
not give any figure concerning the lost materials. He stated insurance did not cover
the loss. (RR3 25 - 26).
Appellant testified that he believed he had taken materials worth from $15,000
vii to $20,000 dollars. (RR3 30 - 31). He also stated that “I'd say about 15 to 20 is what
we got from scrap, so possibly actual value maybe at the most 40, total. And that's
doubling.” (RR3 31). The trial court also asked him directly, “So you're thinking at
least that you stole at least $40,000 from them, you want to pay it back.” (RR3 43).
To which appellant responded, “Yes, ma'am.” (RR3 43). The trial court ordered
restitution of $30,000. (RR3 65); (CR 54). Given his admission of this amount,
appellant does not have grounds to challenge the amount of restitution.
IV. The Victim and State Expressly Waived Any Claims for Restitution.
What is significant for this appeal is that neither the manager Kevin Canfield
nor the owner Robert Rose requested restitution. Canfield testified as follows:
Q: [Defense Counsel]: You're not asking the Court to order restitution for things that Kody Broxton is not responsible for?
A: I don't believe we're asking the Court for restitution. We're asking for punishment and jail time.
Q: So you're not asking the Court to order Kody Broxton to pay back $64,000, $65,000 worth of materials?
A: No.
(RR3 19). Robert Rose also testified he wanted jail time to send a message to others
and did not request restitution because he did not think appellant could pay it back.
(RR3 22, 25).
viii Moreover, the State opposed probation and requested punishment by jail time
instead of restitution. Specifically, the prosecutor stated to the court as follows:
Mr. Burns: You know, if you notice while they've been accused of huffing the numbers and exaggerating the amount of dollars lost of the theft, no one from Delta Centrifugal is asking you to have him pay them back. What they'd rather do is have a strong message to Kody Broxton and to the community that you simply can't steal from an employer like this . . . So Your Honor, in this situation I think this is a situation that the defendant should pay for what he did but not with restitution. He could pay for it with his freedom for the two years in the state jail . . .
(RR3 54 - 55)((emphasis added). The trial court duly imposed the jail time but also
ordered restitution anyway. The issue in this case is whether when both the victim and
the State expressly waive the opportunity for restitution, does a trial court abuse its
discretion when it orders restitution sua sponte.
ix SUMMARY OF ARGUMENT
The trial court ordered restitution even though both the victim and the State
specifically stated they were not requesting it. The statute authorizing restitution does
address whether restitution can be ordered when expressly waived. What little
authority that does exist on this issue makes it clear the State can waive any such
request. General authority concerning the nature of restitution as a punishment option
emphases the goal of compensating the victim. Appellant argues it was an abuse of
discretion to order restitution when both interested parties, the complainant and the
prosecution, unequivocally request incarceration instead of restitution. Appellant was
sentenced to the maximum term of confinement authorized by law.
x IN THE COURT OF APPEALS
FOR THE THIRD SUPREME JUDICIAL DISTRICT
OF TEXAS
TO THE HONORABLE JUSTICES OF THE COURT OF APPEALS:
COMES NOW Kody Broxton, Appellant, through counsel, Ken Mahaffey, and
respectfully submits this Brief.
STATEMENT OF THE CASE
This is an appeal from an un-negotiated guilty plea where the only issue is
whether restitution should have been ordered when waived by the victim and the
State. Appellant now respectfully tenders this brief on appeal.
1 QUESTION FOR REVIEW:
Does a trial court abuse its discretion when it orders restitution when both the victim and the State’s attorney waive that restitution and ask the court to only impose incarceration?
ARGUMENT AND AUTHORITIES
I. Introduction.
Both the victim and the State requested jail time rather than restitution. There
is little or no law concerning the trial court’s discretion to impose restitution absent
a request. The statute granting the power to order restitution does not address this
issue. Appellant will argue that this Court should delete the restitution order pursuant
to the Court’s power to modify judgments under Rule 43.2 (c), Tex. R. App. Proc.
(West 2015).
II. The Statute.
The controlling statute concerning restitution is Art. 42.037, Tex. Code Crim.
Proc. (2013). The statute provides, in relevant part as follows:
(a) In addition to any fine authorized by law, the court that sentences a defendant convicted of an offense may order the defendant to make restitution to any victim of the offense or to the compensation to victims of crime fund established under Subchapter B, Chapter 56, to the extent that fund has paid compensation to or on behalf of the victim. If the court does not order restitution or orders partial restitution under this subsection, the court shall state on the record the reasons for not making
2 the order or for the limited order.
This statute does not expressly address whether restitution can be ordered absent a
request from the victim or the State’s attorney.
III. Standard of Review.
The standard of review concerning restitution orders is whether the order was
an abuse of discretion. Lemos v. State, 27 S.W.3d 42 (Tex. App. - San Antonio 2000,
no pet.). A trial court abuses its discretion when it acts in an arbitrary or unreasonable
manner. Montgomery v. State , 810 S.W.2d 372, 380 (Tex. Crim. App. 1990). It is
also important to note that, because probation was denied, this matter must be
reviewed independently of any restitution provisions in Art. 42.12, Tex. Code Crim.
Proc. (2015)(governing grants of community supervision).
IV. Issue is One of First Impression.
The issue of whether restitution can be ordered where both the victim and
State’s attorney waived it by specifically requesting jail time instead of such
compensation does not appear to have been litigated under the controlling statute.
Most restitution orders in criminal cases have been reviewed to determine whether
the amount was properly proved or whether ordered paid to an authorized party. See
e.g., Drilling v. State, 134 S.W.3d 468, 470 (Tex. Crim. App. 2004)(remanding
3 because no evidence of fair market value); Martin v. State, 874 S.W.2d 674, 677-78
(Tex. Crim. App. 1994)(cannot order restitution to persons other than the victims of
the offense for which the defendant was convicted).
Some decisions, however, implicitly recognized that restitution could be
waived by the State. See Allen v. State, 720 S.W.2d 618, 618 (Tex. App. - Houston
[1st Dist.] 1986, pet. ref’d)(State withdrew request for restitution); Bayonne v. State,
12-10-282-CR (Tex. App. - Tyler 2011, no pet.) (restitution order deleted at request
of State); Norman v. State, 04-04-00292-CR (Tex. App. - San Antonio 2007, no pet.)
(initially remanded for hearing on restitution amount but noting State waived
restitution at the hearing). These opinions recognize the State has the power to waive
any claim for restitution.
V. Principal Purpose of Restitution is to Compensate Victim.
In a recent case challenging restitution in a DWI case where no victim was
alleged, the Court of Criminal Appeals discussed the nature of the remedy. See Hanna
v. State, 426 S.W.3d 87 (Tex. Crim. App. 2014). In Hanna, the Court observed as
follows:
Restitution is not only a form of punishment, it is also a crime victim's statutory right. Restitution serves multiple purposes, including restoring the victim to the status quo and forcing an offender to address and remedy the specific harm that he has caused.
4 A broad interpretation of the restitution statutes provides judges with greater discretion in effectuating opportunities for rehabilitating criminals, deterring future harms, and efficiently compensating victims.
Id. at 91 (citations omitted). This language suggests that a trial court has discretion
to impose restitution as a type of punishment but places great emphasis on
compensation of the victim as its principal purpose. Nothing in this broad statement,
however, addressed whether restitution may be imposed when waived by the victim
and the State.
Moreover, even if restitution is a form of punishment, it is not part of the
statutory range of punishment for the penal offense that appellant was convicted.
Appellant was charged under Sec. 31.03 (e)(4), Tex. Penal Code Ann. (2013). This
provision makes theft of $1,500.00 to $20,000.00 a state jail felony. Id. Under Sec.
12.35 (a) & (b), Tex. Penal Code Ann. (2013), the range of punishment for state jail
felonies is from 180 days to two years in the state jail and a fine up to $10,000. Since
it is not stated as part of the punishment, restitution is a qualitatively different type
remedy that logically should be requested in some form before it is imposed. A
pleading or some sort of request has been required for other forms of punishment
outside of the normal range of punishment. See e.g., Brooks v. State, 957 S.W.2d 30,
34 (Tex. Crim. App. 1997)(improper to enhance punishment with prior conviction
5 where no pleading alleged it); Johnson v. State, 784 S.W.2d 413, 415 (Tex. Crim.
App. 1990)(deadly weapon finding deleted because no allegation made in the
indictment).
VI. Possibly Contrary Authority Distinguished.
Candor with the Court is always important. Counsel owes a duty to disclose
contrary authority. Rule 3.03, Texas Rules of Prof. Conduct, Vol 3A, Tex. Gov't Code
Ann. (2015). The issue here is whether the trial court may impose restitution under
Art. 42.037, Tex. Code Crim. Proc. (2013), even when it is expressly waived. This
question has been addressed under somewhat similar statutes. Appellant will discuss
those decisions.
In one case, this issue was raised in a juvenile prosecution. See In the matter
of M. H., 662 S.W.2d 764 (Tex. App. - Corpus Christi, 1983, no writ.). In that case,
the appellant challenged revocation of probation for failing to comply with a
restitution order because the State’s pleadings failed to request it. Id. at 766. The
argument relied on the Rule 301, Tex. R. Civ. Proc. (1983), that a judgment may not
order relief unsupported by a proper pleading. Id. The reviewing court upheld the
restitution order based on Sec. 54.05(d)(1)(D), Texas Family Code (1983). Under that
provision, restitution is proper if a finding is made under Sec. 54.05(c), supra, “that
6 the protection of the public and the child requires disposition.” M.H., supra at 766.
Appellant submits M.H., supra, is distinguishable for three reasons. First it
involved a different statute and Art. 42.037, Tex. Code Crim. Proc. (2013), does not
require the type of affirmative finding that supported the order in that case. Second,
the focus was on the pleading for restitution rather than the unequivocal waiver of
restitution as occurred in this case. M.H, supra at 766. Third, the case involved
restitution as a condition of probation not as a judgment imposing it as part of an
executed sentence of incarceration. Id.
Another similar case which challenged restitution on the same basis; i.e., the
failure to request it by proper pleading. In James v. Commission for Lawyer
Discipline, 310 SW 3d 598 (Tex. App. - Dallas 2010, no writ). Like M.H., supra, the
appellant challenged a restitution award because there was no pleading requesting it.
James, supra at 609. The reviewing court held the pleadings alleging attorney
misconduct and requesting “sanctions” under Rule 1.06Y, Tex. R. Disciplinary
Conduct (2010), authorized the trial court order because the term sanction is defined
to include restitution. Id. at 610. Again, the is case is distinguishable because there
was a specific request for restitution in the pleadings and the controlling statute
clearly authorized it. Moreover, James, supra and did not address the proper course
of action when both the victim and counsel for the petitioner expressly state they are
7 not requesting restitution.
In the case at bar, no statute specifically permits imposition of restitution when
there was no request for it, nor allows it when affirmatively waived. The restitution
was not imposed as a condition of community supervision but rather on top of what
the State and victim specifically requested be imposed instead, i.e.: incarceration.
Appellants are always subject to systemic waiver rules and there appears to be no
reason why this should not apply to other interested parties.
VII. Remedy is to Delete the Order.
There are two types of remedies for trial court errors concerning restitution.
The appellate court may either remand for a new hearing or reform the judgment to
delete the restitution order. Barton v. State, 21 S.W.3d 287, 289 (Tex. Crim. App.
2000). Here, the error asserted is an abuse of discretion in ordering restitution that
was expressly waived by both the victim and the State’s attorney. The record clearly
establishes both facts. (RR3 19, 22, 25, 54 - 55). In this case, a remand for a new
hearing would not add anything new to the record. This Court should exercise its
jurisdiction under Rule 43.2 (c), Tex. R. App. Proc. (West 2015) (court of appeals
may “reverse the trial court’s judgment in whole or in part and render the judgment
the trial court should have rendered.”). The proper remedy is to reform the judgment
8 deleting the order concerning restitution.
VIII. Conclusion.
Both the victim and the State’s attorney specifically stated they were not
requesting restitution. Restitution can be an aspect of punishment but its primary
purpose is to serve the victim. The statutory authority for ordering restitution does not
expressly grant a trial court the power to order restitution when it is affirmatively
waived. While this issue had not be addressed directly, such authority that does exist
clearly shows the State may waive any restitution. The trial court abused its discretion
by ignoring that waiver. This Court should delete the restitution order.
9 PRAYER FOR RELIEF
WHEREFORE, PREMISES CONSIDERED, Appellant respectfully prays that
the judgment of conviction be reversed and the matter be remanded to the trial court
for a new trial.
Respectfully Submitted,
Ken Mahaffey Counsel for Appellant P.O. Box 684585 Austin, Texas 78768 Phone & Fax (512) 444-6557 St. Bar. No. 12830050 Ken Mahaffey@yahoo.com
CERTIFICATE OF SERVICE
The above signature certifies that on April 3, 2015, this document was sent to
the Bell County D.A.’s Office, P.O. Box 540, Belton, Texas 76513 and to Kody
Broxton, 01972710, 1018 Arnold Drive, Bartlett State Jail, Bartlett TX 76511. The
above signature also certifies that this document contains 3508 words in compliance
with Rule 9.4, Tex. R. App. Proc. (2015)(not to exceed 15,000 words).