Martin v. State

BAIRD, Judge,

dissenting.

I respectfully dissent because I believe Tex.Code Crim.Proc.Ann. art. 42.12, § 11(b) authorizes a trial judge to order restitution payments to both the “victims” for whom the defendant’s criminal lability has been adjudicated and the “victims” for whom there is a factual basis of the defendant’s lability.

I.

Tex.Code Crim.Proc.Ann. art. 42.12, § 11(a)(8), Basic Conditions of Probation, provides in pertinent part:

a) ... Terms and conditions of probation may include, but shall not be limited to, the conditions that probationer shal:

(8) Pay his fine, if one be assessed, and a! court costs whether a fine be assessed or not, in one or several sums, and make restitution or reparation in any sum the court shall determine; 1

Tex.Code Crim.Proc.Ann. art. 42.12, § 11(b) provides in pertinent part:

A judge may not order a defendant to make any payments as a term or condition of community supervision, except for fines, court costs, restitution to the victim, and conditions related personaly to the reha-biltation of the defendant or otherwise expressly authorized by law....

*681 As the majority correctly notes, § 11(b) limits the broad language of § 11(a)(8) authorizing the trial judge to order restitution payments. Majority Op. pg. 676-677. However, I do not believe either the legislative history or the relevant decisional authority forces the conclusion that the term victim is limited to the complainants of a crime for which a defendant’s criminal liability has been adjudicated.

II.

The legislative history of § 11(b) does not support the majority’s conclusion that restitution payments are limited to only those victims of offenses for which a defendant’s liability has been adjudicated. See, Majority Op. pg. 676-677. In fact, the legislative history provides little guidance on this issue. Prior to the enactment of the “restitution to the victim” provision in the Code of Criminal Procedure, the trial judge had broad authority to order a probationer to “make restitution or reparation in any sum the court shall determine.” See, Tex.Code Crim.Proc.Ann. art. 781d (Vernon 1965). See also, Tex.Code Crim.Proc.Ann. art. 42.12, § 6(a)(8). In 1987, the Legislature enacted art. 42.12, § 6(e), the predecessor to the current “restitution to the victim” provision. See, Acts 1987, 70th Leg., ch. 939, § 4. 2 Thus, subsection (e), which specified paying “restitution to the victim” appears to be an attempt by the Legislature to restrict the trial judge’s authority to order restitution. However, while the Legislature obviously intended to limit the scope of those who may receive restitution, the limitation of the provision, does not, in itself, define the breadth of the class of victims or what injuries were compensable. Furthermore, nowhere in the legislative record does the Legislature define the scope of the term victim for the purpose of restitution. 3 Consequently, the legislative history does not support the majority’s conclusion that § 11(b) narrows the restitution statute *682 to only the complainant named in the indictment.

III.

The majority relies upon Gordon v. State, 707 S.W.2d 626 (Tex.Cr.App.1986), to hold a defendant’s criminal liability must be adjudicated prior to ordering restitution. See, Majority Op. pg. 677. Gordon, a Harris County Deputy Sheriff, was charged with causing the death of a prisoner who died in Gordon’s custody. Gordon was acquitted of causing the death but convicted of a lesser included offense. Id., at 628 . The trial judge probated Gordon’s sentence and ordered Gordon, as a condition of probation, to pay restitution for the complainant’s funeral expenses. Id. We held the trial judge was without authority to order restitution for funeral expenses because the jury found Gordon was not criminally responsible for the complainant’s death. Id., at 630 .

The majority’s reliance on Gordon is misplaced. The majority’s interpretation of Gordon stems entirely from dicta. Majority Op. pg. 677, and n. 7. Gordon cited the concurring opinion in Bradley v. State, 478 S.W.2d 527 (Tex.Cr.App.1972), wherein Judge Roberts argued that a defendant placed on probation could not be ordered to pay restitution to a party other than the victim of the crime for which the defendant was convicted. Gordon, 707 S.W.2d at 629 . However, the Gordon Court did not adopt Judge Roberts’ rationale but rather emphasized that there had been an adjudication, namely an acquittal of causing the complainant’s death.

Rather, Gordon’s holding is based upon less stringent due process considerations. In interpreting Tex.Code Crim.Proc.Ann. art. 42.12, § 6(a), the Gordon Court stated:

Certainly whether to order restitution as a condition of probation is within the sound discretion of the trial court. But the dollar amount is a matter that the court ‘shall determine’ ... Due process considerations thus implicated require that there must be evidence in the record to show that the amount set by the court has a factual basis.

Gordon, 707 S.W.2d at 629 (citing Cartwright v. State, 605 S.W.2d 287, 289 (Tex.Cr.App.1980)). 4 The Gordon Court held the order of restitution to be a denial of due process, “tantamount to penalizing [Gordon] for an offense for which he had been acquitted.” Gordon, 707 S.W.2d at 630 . In other words, Gordon’s acquittal removed any factual basis upon which to predicate restitution for the funeral expenses. Accordingly, the trial judge was without authority to order Gordon to make restitution.

In Gordon , we relied upon Cartwright v. State, 605 S.W.2d 287 (Tex.Cr.App.1980). Cartwright was convicted of aggravated assault of a peace officer. The trial judge probated Cartwright’s sentence, and, based on a presentence investigation report (PSI), ordered Cartwright to pay restitution in the amount of $36,000.00. We held that to support an order of restitution payments “there must be evidence in the record to show that the [restitution] amount set by the court has a factual basis.” Id., 605 S.W.2d at 289 . Reviewing the record, we observed the only evidence supporting the trial judge’s order of restitution was the PSI. Although the PSI mentioned the complainant’s financial losses, the PSI did not otherwise support the restitution. Id., at 288 . We concluded the PSI did not establish a factual basis upon which to order restitution. Id., at 289 . See also, Thompson v. State, 557 S.W.2d 521, 525-526 (Tex.Cr.App.1977) (restitution order to complainant set aside because no evidentiary basis in record to support amount of restitution).

When read in conjunction, Gordon and Cartwright hold that a trial judge’s authority to order restitution requires only: (1) that there be a factual basis in the record to conclude the defendant is liable for the criminal conduct, Gordon, 707 S.W.2d at 629-630 , and (2) that there be a factual basis to determine the amount of the restitution, Cartwright, 605 S.W.2d at 289 . Compare, LaFleur v. State, 848 S.W.2d 266, 270 (Tex. App.—Beaumont 1992), and, Romine v. State, 722 S.W.2d 494, 503 (Tex.App.—Houston [14th Dist.] 1986, PDR ref'd).

IV.

In light of the foregoing, I believe art. 42.12, § 11(b) authorizes a trial judge to or *683 der restitution to the victims of offenses of which there is a factual basis in the record to conclude a defendant is criminally liable and for which there is a factual basis to determine the restitution amount. As we noted in Gordon , due process is violated by ordering a defendant to pay restitution to victims of an offense of which he is acquitted. Id., 707 S.W.2d at 630 . However, an acquittal is distinct from an unadjudicated offense which has a factual basis in the record. Due process requires no more than there be a factual basis in the record to conclude criminal liability before ordering restitution. 5 See, Cartwright, 605 S.W.2d at 287 . See also, Ro-mine, 722 S.W.2d at 503 . Therefore, I would hold that where there is a factual basis in the record from which to conclude criminal liability for an unadjudicated offense, the trial judge has the authority to order restitution based on that offense to a victim so long as there is also a factual basis from which to determine the amount of the restitution. 6 See, Gordon, 707 S.W.2d at 630 . Compare, Harrison v. State, 713 S.W.2d 760, 765 (Tex. App. — Houston [14th Dist.] 1986, PDR ref d). Because the majority does not so hold, I respectfully dissent.

MILLER, J., joins this opinion.

. All emphasis is supplied unless otherwise indicated.

. Section 6(e) of art. 42.12 was subsequently renumbered as § 11(b) of art. 42.12 by Acts of May 4, 1989, 71st Leg., R.S., ch. 785, § 4.17. Aside from renumbering tbe provision, the Legislature made no substantive changes.

. In fact, the addition of "restitution to the victim” language to art. 42.12, § 6(e) appears to be a legislative afterthought. It is significant to note that prior to its enactment the House version of subsection (e), House Bill No. 83, did not contain "restitution to the victim” language but instead authorized the trial judge to require the probationer to make payments to the "crime stoppers” program.

In reaching the Senate, H.B. 83, which lacked “restitution to the victim” language, was referred to the Senate Committee on Criminal Jurisprudence. During the Committee on Criminal Jurisprudence hearing on H.B. 83, the committee members expressed two concerns over the "crime stoppers” provision: (1) a defendant would be overloaded with too many payments, and (2) a trial judge might order payments to selective favored organizations. The Committee on Criminal Jurisprudence decided to remove the "crime stoppers" provision by floor amendment in the Senate. Hearing on H.B. 83 Before Senate Committee on Criminal Justice, 70th Leg., R.S. (May 21, 1987 (Tape 1)).

On May 23, 1987, H.B. 83 was presented to the Senate. Sen. Farabee introduced a floor amendment which removed the "crime stoppers” language but substituted language authorizing the trial judge to order the probationer to pay "restitution to the victim.” Sen. Farabee stated:

"This is a floor amendment that would state that a court may not order a probationer to make any payment as a term or condition of probation except for fines, court costs, restitution to the victim and other terms and conditions expressly authorized by the section.

... We do find that where people are being burdened down to the point that there may be indications they are going out to steal to try to make the terms. And in fact, one of the largest number of people in our institutions are there for technical violations.”

Although Sen. Farabee did not define the scope of "victim" for the purposes of restitution, he acknowledged "restitution” would include counseling costs for child abuse victims. Senate Session, Second and Third Readings of H.B. No. 83, 70th Leg., R.S. (May 23, 1987 (Tape 1)). However, this statement is not probative as to whether the scope of "victim” may extend to those persons affected by conduct for which a defendant has not been charged and convicted.

Consequently, the legislative history does not provide guidance on whether complainants unnamed in the indictment, yet injured by a defendant’s criminal conduct, are considered victims under § 11(b). The addition of the “restitution to the victim” language merely evinces a general legislative intent to narrow the class of persons entitled to restitution because the subsection modifies the broad grant of authority to order restitution under art. 42.12, § 8(a). However, judging from the Sen. Farabee’s explanation while introducing the floor amendment, it is clear that restitution will include, at a minimum, all the complainant's expenses resulting from adjudicated criminal conduct.

. At the time of Gordon’s conviction, the Code of Criminal Procedure did not contain language limiting restitution payments to the victim of an offense. See, Part II, supra.

. Requiring a factual basis in the record of a defendant's criminal culpability is consistent with our case-law pennitting the consideration of unadjudicated offenses at punishment in other contexts. See, Kemp v. State, 846 S.W.2d 289, 307 (Tex.Cr.App.1992), and, Smith v. State, 676 S.W.2d 379, 390 (Tex.Cr.App.1984) evidence of unadjudicated offenses is admissible during punishment phase of capital murder trial).

Moreover, in the last legislative session, the Legislature amended Tex.Code Crim.Proc.Ann. art. 37.07, § 3(a), to allow the admission of unadjudicated extraneous offenses during punishment phase of trial for non-capital offenses. See, Acts 1993, 73rd Leg., ch. 900, § 5.05, eff. Sept. 1, 1993. Notably, due process is not violated by the admission of unadjudicated offenses for the purposes of punishment because any unadju-dicated offense must be proven beyond a reasonable doubt prior to its admission. See, art. 37.07, § 3(a). Further, the Legislature has provided that on timely request by a defendant, notice that unadjudicated offenses will be used to increase punishment must include "the date on which and the county in which the alleged crime or bad act occurred and the name of the alleged victim of the crime or bad act.” Art. 37.07, § 3(g). See also, Tex.R.Crim.Evid. 404(b).

Consequently, to prevent surprise and prepare an adequate defense, the apt practitioner will request notice of a defendant’s unadjudicated extraneous offenses pursuant to Tex.R.Crim.Evid. 404(b). See, Espinosa v. State, 853 S.W.2d 36, 39 (Tex.Cr.App.1993) (Baird, J., concurring).

. As side note, however, I would not hold the trial judge's authority to order restitution under § 11(b) in any way precludes the State and a defendant from settling on an amount of restitution payments through plea bargaining.