Opinion
Nos. 04-04-00292-CR, 04-04-00293-CR, 04-04-00294-CR, 04-04-00295-CR, 04-04-00296-CR
Delivered and Filed: October 11, 2006. DO NOT PUBLISH.
Appeal from the 216th Judicial District Court, Kendall County, Texas, Trial Court Nos. 4148, 4149, 4150, 4151, and 4152, Honorable Stephen B. Ables, Judge Presiding. Abated and Remanded.
Sitting: Karen ANGELINI, Justice, Sandee Bryan MARION, Justice, Phylis J. SPEEDLIN, Justice.
MEMORANDUM OPINION
John Robert Norman was convicted of three counts of sexual assault and two counts of indecency with a child and was sentenced to twenty years on each count to run concurrently. With respect to one of the offenses, Norman was ordered to pay $53,086.00 in restitution as a condition of parole. He brings four issues on appeal: (1) whether the sentences for indecency with a child should be reformed; (2) whether the trial court improperly allowed the State to introduce and use extraneous, unadjudicated offenses in cross-examination and rebuttal; (3) whether he was denied effective assistance of counsel; and (4) whether restitution was properly assessed and imposed. With regard to Norman's fourth issue, because the restitution order is not supported by a factual basis, we abate this appeal and remand the cause to the trial court for a hearing to determine a just amount of restitution.
BACKGROUND
On the afternoon of June 24, 2003, John Robert Norman, a business owner and father of two children, was arrested. His arrest stemmed from a statement given by N.C. to a police detective the day before. N.C. was Norman's employee and also a friend of Norman's son. In his sworn statement to police, N.C. affirmed that he had been sexually abused by Norman. According to N.C., the sexual abuse began around February 2001 and ended around November 2001, and occurred at various times and locations: while spending the night at the Normans' home, while riding in Norman's car, and while working at Norman's place of business. Based on N.C.'s sworn statement, Norman was indicted on three counts of sexual assault and two counts of indecency with a child. Norman pled guilty to all five offenses. After a punishment hearing, he was sentenced to twenty years in all five cases to run concurrently with restitution as a condition of parole. Norman filed a motion for a new trial, but his motion was denied without a hearing. He then appealed, bringing ten points of error. On July 6, 2005, in an interlocutory opinion, we held that "the trial court abused its discretion in failing to conduct a hearing on Norman's motion for a new trial." Norman v. State, No. 4-04-00292-CR to 4-04-00296-CR, 2005 WL 1552318, at *2 (Tex.App.-San Antonio July 6, 2005, no pet.) (mem. op.) (not designated for publication). We abated the appeal and remanded the cause to the trial court for an evidentiary hearing on Norman's motion for a new trial. Id. at * 3. On December 7, 2005, the trial court heard Norman's motion for a new trial. During the hearing, Norman called his defense counsel and the prosecutor as witnesses. After hearing the evidence, the trial court denied Norman's motion for a new trial. After the supplemental appellate record was filed, we reinstated this appeal on the docket of this court.Restitution
According to Norman, the trial court erred in including restitution in the judgment for the following reasons: (1) the restitution order is illegal because it orders restitution for someone other than the victim; (2) the restitution order is not supported by legally and factually sufficient evidence; and (3) no restitution order was pronounced in open court at the time of sentencing. In Texas, in addition to any fine authorized by law, a court may order a defendant to make restitution to the victim of the offense. TEX. CODE CRIM. PROC. ANN. art. 42.037(a) (Vernon Supp. 2006). Whether to order restitution is within the sound discretion of the trial court and is reviewed on appeal for abuse of discretion. Cartwright v. State, 605 S.W.2d 287, 289 (Tex.Crim.App. 1980); Lemos v. State, 27 S.W.3d 42, 45 (Tex.App.-San Antonio 2000, pet. ref'd); see Tex. Code Crim. Proc. Ann. art. 42.037 (Vernon Supp. 2006). In considering whether to order restitution and the amount of restitution, the trial court should consider the following: (1) the amount of the loss sustained by any victim as a result of the offense and the amount paid to or on behalf of the victim by the compensation to victims of crime fund as a result of the offense; and (2) other factors the court deems appropriate. See Tex. Code Crim. Proc. Ann. art. 42.037(c)(1)-(2) (Vernon Supp. 2006). The trial court's discretion, however, is not unlimited. The trial court must set an amount of restitution that is just and has "a factual basis within the loss of the victim." Campbell v. State, 5 S.W.3d 693, 696-97 (Tex.Crim.App. 1999). It may not order restitution for any offense for which the defendant is not criminally responsible. Id. And, it may not order restitution to any but the victim or victims of the offense with which the offender is charged. Id. Here, according to Norman, the trial court improperly ordered restitution to someone other than the victim and set an amount of restitution not supported by a factual basis. A. Factual Basis We first consider whether the trial court abused its discretion by awarding restitution that was unjust or unsupported by a factual basis. Because due process concerns are implicated, for an amount of restitution to be supported by a factual basis, it must necessarily be supported by evidence in the record. Cartwright, 605 S.W.2d at 288; see Idowu v. State, 73 S.W.3d 918, 922 (Tex.Crim.App. 2002) (upholding restitution order where State offered specific evidence establishing that the loss suffered by the victim due to the defendant's theft was equal to the amount of restitution awarded); Thompson v. State, 557 S.W.2d 521, 525-26 (Tex.Crim.App. 1977) (striking down restitution order because the record did not show that the victim's injuries justified the restitution amount). According to Norman, there is no evidence in the record to support the amount of $53,086.00 in restitution. Indeed, the record of the sentencing hearing makes only three references to the amount of restitution. The first two references to restitution arose in the context of closing arguments. The third statement was brought up by the trial court in sentencing. The statements were as follows:Defense: There is an issue of restitution involved. I believe the State provided some information to us that there's going to be restitution arising out of [N.C.]'s counseling, his therapy, his schooling, and things along those lines. The numbers come up to in the, I believe, $50,000 range, and Mr. Norman is productive. He's steady. He [has] a job. It took him a long time, but he found a job. He's working. He can pay the restitution back. If he's in the penitentiary, obviously, that's something he won't be able to do.
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State: With regard to the restitution, Your Honor, the family is requesting that that be ordered, but the family, I am sure, would be willing to forego any restitution in exchange for the Court's sending the Defendant to prison. I don't think that's their number one priority. I think that should be ordered, whether he goes to prison or not. He can be made to pay that as a condition of probation, and they're entitled to this $50,000 that they're out as a result of the Defendant's choices and actions.
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Court: Mr. Norman, I am going to sentence you to 30 years in the penitentiary in each of these five cases. They will run concurrent. You will have to pay $50,000 in restitution.The amount of $53,086.00 was ultimately awarded in the judgment as a condition of parole. This specific amount, however, is completely unsupported by the record. The State does not dispute that there is no evidence in the report to support the amount. Instead, relying on Campbell v. State, 5 S.W.3d 693 (Tex.Crim.App. 1999), the State argues that it was not necessary to introduce evidence because the issue of restitution was uncontested at trial. We disagree. In Campbell, the defendant "stipulated to the amounts that he stole from his victims." Id. at 696. Therefore, the court held that the amount of restitution "had a factual basis in the record." Id. Here, however, there is no such stipulation in the record. At the sentencing hearing, Norman's attorney stated that the State had provided him some information and that he believed the amounts to be somewhere in the $50,000 range. These statements do not constitute a stipulation of the evidence. Without such a stipulation, the amount of restitution set by the trial court is not supported by a factual basis. When the restitution order is not supported by a factual basis, we must "abate the appeal, set aside the amount of restitution, and remand for an evidentiary hearing to determine the amount of restitution to be ordered paid by appellant." Cartwright, 605 S.W.2d at 288; see Barton v. State, 21 S.W.3d 287, 290 (Tex.Crim.App. 2000) ("The proper procedure where the amount of restitution ordered . . . is not supported by the record is to abate the appeal, set aside the amount of restitution, and remand the case for a hearing to determine a just amount of restitution."). But, before we abate and remand, we must consider whether the trial court erred in ordering Norman to pay restitution to the victim's father. B. Paying Restitution to Someone Other than Victim A trial court cannot order restitution to a person who is not a victim of the charged offense. Campbell, 5 S.W.3d at 697; see Lemos, 27 S.W.3d at 49 (holding that an award of restitution to compensate the victim's mother and daughter of the victim for their counseling expenses was improper because they were not victims as defined by the statute). However, pursuant to article 42.037(f)(1), "[t]he court may, in the interest of justice, order restitution to any person who has compensated the victim for the loss to the extent the person paid compensation." TEX. CODE CRIM. PROC. ANN. art. 42.037(f)(1) (Vernon Supp. 2006). However, these expenses must be incurred as a direct result of the defendant having committed the offense and having harmed the victim as a result. See Cabla v. State, 6 S.W.3d 543, 545, 549 (Tex.Crim.App. 1999) (allowing restitution for property damage or medical expenses sustained by victim as a direct result of offense); Lemos, 27 S.W.3d at 49 (holding that trial court erred in awarding victim's daughter restitution for therapeutic expenses because "these expenses were not incurred as a direct result of the aggravated robbery"). Here, Norman was ordered to pay restitution to the father of the victim. Ordering Norman to pay restitution to the victim's father (instead of the victim) would be permissible under article 42.037(f)(1) if the father had paid for expenses incurred by the victim as a direct result of the offense. However, because there is no evidence in the record about the victim's expenses, it is unclear whether such an order was improper. C. Pronouncement in Open Court Finally, Norman complains that the restitution order "was not rendered as part of the judgment in open court." However, because we must abate and remand the cause for a new restitution hearing, we need not decide this issue.