Lionel Edwin Snow v. State

• Court: Court of Appeals of Texas
• Decided: July 10, 2014
• Docket: 03-12-00573-CR
• Status: Published

Opinion

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-12-00573-CR

Lionel Edwin Snow, Appellant

v.

The State of Texas, Appellee

FROM THE DISTRICT COURT OF BELL COUNTY, 426TH JUDICIAL DISTRICT NO. 69572, HONORABLE FANCY H. JEZEK, JUDGE PRESIDING

MEMORANDUM OPINION

A jury found appellant Lionel Edwin Snow guilty of two counts of aggravated

sexual assault. See Tex. Penal Code § 22.021. Snow pleaded “true” to an enhancement allegation,

and the trial court sentenced him to forty-five years’ imprisonment for each count. On appeal,

Snow asserts that the evidence is insufficient to support the trial court’s judgment requiring him

to pay restitution for the cost of a sexual assault exam performed on the victim. We affirm the

judgment of the trial court.

DISCUSSION

Snow asserts that the trial court erred in ordering him to pay restitution for the

cost of performing a sexual assault exam on the victim the morning after the sexual assault.1

1 Given that Snow does not challenge his underlying conviction or sentence, we need not recite the facts of the underlying sexual assault. Specifically, Snow asserts that there is no competent evidence in the record to support the

trial court’s finding that the exam cost $615.00. Therefore, according to Snow, that portion of

the restitution order should be deleted from the judgment.

We review a trial court’s restitution order for an abuse of discretion. Cartwright

v. State, 605 S.W.2d 287, 289 (Tex. Crim. App. 1980). A trial court abuses its discretion if its

decision lies outside the zone of reasonable disagreement. Casey v. State, 215 S.W.3d 870, 879

(Tex. Crim. App. 2007). “The amount of the restitution must be just, and it must have a factual

basis within the loss of the victim.” Campbell v. State, 5 S.W.3d 693, 696 (Tex. Crim. App. 1999).

The restitution may also include an amount to compensate the Texas “victims of crime fund . . . to

the extent that fund has paid compensation to or on behalf of the victim.” See Tex. Code Crim. Proc.

art. 42.037(a).

Snow asserts that the only basis for the trial court’s valuation of the cost of the sexual

assault exam was the presentence-investigation report (PSI). See id. art. 37.07, § 3(d) (authorizing

court to request, prior to punishment determination, preparation of PSI). Snow argues that because

the PSI was never offered or formally admitted as an exhibit, it cannot constitute a factual basis for

the cost of the sexual assault exam.2 Thus, according to Snow, there is no evidence in the record

which can support the trial court’s restitution order.

2 Snow also argues that the PSI is not part of the appellate record, and therefore should not be considered by this Court. However, at the State’s request, the trial court supplemented the appellate record to include the PSI, and thus the PSI is properly before us. See Brewer v. State, No. 1270-03, 2004 WL 3093224, at *4 n.33 (Tex. Crim. App. May 19, 2004) (mem. op., not designated for publication) (noting that trial court or party may supplement appellate record with PSI); Rodriguez v. State, 71 S.W.3d 778, 780 (Tex. App.—Texarkana 2002, no pet.) (“There is no question of our authority in this case to order the record supplemented with the PSI report.”).

2 It is well established that a trial court may consider the contents of a PSI regardless

of whether the report was formally admitted into evidence. See Smith v. State, 227 S.W.3d 753,

758–59 (Tex. Crim. App. 2007) (noting court could consider un-admitted PSI in determining

punishment); Fryer v. State, 68 S.W.3d 628, 631 (Tex. Crim. App. 2002). Furthermore, “the

rules of evidence do not apply to the contents of the PSI.” Fryer, 68 S.W.3d at 631. Therefore, the

trial court may consider the information contained within the PSI regardless of whether the

information would otherwise violate rules concerning hearsay, admissibility of expert opinion, or

Confrontation Clause objections. See Stringer v. State, 309 S.W.3d 42, 46–48 (Tex. Crim. App.

2010). Thus, the trial court could properly consider the PSI in this case in determining the proper

amount of restitution.

Under the heading “Total Restitution,” the PSI in this case states that $615.00 is

owed to the “Office of the Attorney General—Crime Victims’ Compensation” for the cost of a

sexual assault exam. Snow’s trial counsel was given a copy of this PSI prior to the punishment

hearing, and when the trial court asked defense counsel if he wished to make any objections or

corrections to the report, Snow’s counsel responded “No, Judge, there are none.” See Tex. Code

Crim. Proc. art. 42.12, § 9(d)–(e) (allowing defendant opportunity to review and challenge contents

of PSI). Snow did not challenge the validity of the amount of restitution in the PSI, and thus the

trial court could have reasonably concluded that the information in the PSI was accurate. See Bell

v. State, 155 S.W.3d 635, 639 (Tex. App.—Texarkana 2005, no pet.) (noting it is defendant’s burden

to prove information in PSI is inaccurate).

Given that the PSI provides a factual basis from which the trial court could have

determined the amount owed to the victims of crime fund for the sexual assault exam, we conclude

3 that the there is sufficient evidence to support the trial court’s order requiring Snow to pay $615.00

in restitution to the fund. See Tex. Code Crim. Proc. art. 42.037(a) (stating restitution can include

reimbursement to victims of crime fund). Therefore, we overrule Snow’s sole issue on appeal.

CONCLUSION

Having overruled Snow’s sole issue on appeal, we affirm the trial court’s judgment

of conviction.

__________________________________________

Scott K. Field, Justice

Before Chief Justice Jones, Justices Goodwin and Field

Affirmed

Filed: July 10, 2014

Do Not Publish