Opinion
No. 05-05-01689-CR
Opinion Issued April 3, 2007.
On Appeal from the Criminal District Court No. 3 Dallas County, Texas, Trial Court Cause No. F05-01321-MJ.
Before Justices O'NEILL, LANG-MIERS, and MAZZANT.
OPINION
David Weldon Riggs appeals the trial court's judgment entered on his open plea of guilty to aggravated assault. The trial court assessed Riggs's punishment at fifty years in prison and ordered restitution in the amount of $6,000. Riggs argues (1) there was insufficient evidence to support the trial court's restitution order and (2) his sentence was outside the applicable punishment range. The State has moved to dismiss the appeal, arguing Riggs waived his right to appeal as part of the plea bargain agreement.
Motion to Dismiss
On October 3, 2005, the same day it entered judgment on appellant's open plea of guilty, the trial court signed a rule 25.2(d) certification of right to appeal stating that appellant waived his right to appeal. Appellant's counsel filed a brief asserting the certification was incorrect, stating there was no waiver of the right to appeal. We sent the trial court a letter asking the trial judge to review the record and determine whether the certification was correct. On August 1, 2006, the trial judge sent a letter stating the certification was correct. Several weeks later, the State filed a motion to dismiss the appeal or in the alternative to abate the case for a hearing regarding whether appellant waived his right to appeal. We then issued an order abating the appeal, and sending the case back to the trial court to determine if appellant knowingly and intelligently waived his right to appeal as part of the plea bargain agreement or whether the waiver occurred after appellant was sentenced. After holding a hearing, the trial judge found that appellant knowingly, intelligently, and voluntarily waived his right to appeal in conjunction with the plea bargain agreement. In response to our subsequent order reinstating the appeal, both parties filed letter briefs addressing the impact of the court of criminal appeals' recent decision in Ex parte Delaney, 207 S.W.3d 794 (Tex.Crim.App. 2006), on the trial court's findings of fact.
The issue of whether appellant waived his right to appeal was deferred to this panel.
In Ex parte Delaney, the court of criminal appeals discussed the requirements for a valid waiver of the right to appeal:
To remove the confusion that has arisen related to pretrial waivers of appeal, we hold that, in order for a pretrial or presentencing waiver of the right to appeal to be binding at the punishment phase of trial, the waiver must be voluntary, knowing, and intelligent. One way to indicate that the waiver was knowing and intelligent is for the actual punishment or maximum punishment to have been determined by a plea agreement when the waiver was made. However, simply knowing the range of punishment for the offense is not enough to make the consequences of a waiver known with certainty, because it still does not allay the concern that unanticipated errors may occur at the punishment phase of trial.
Ex parte Delaney, 207 S.W.3d at 799.
The record from the abatement hearing shows that when appellant appeared in court on the day his case was set for jury trial he indicated he wanted to change his plea to guilty and "go open" to the trial judge for punishment. When appellant pleaded guilty and waived his right to a jury trial, the prosecutor handling the case informed him that she would only agree to a waiver of the State's right to a jury trial if appellant waived his right to appeal. Appellant was admonished that the range of punishment for the offense was five to ninety-nine years or life in prison and a fine not to exceed $10,000, and the trial judge would set appellant's punishment within that range. The trial judge's conclusion that appellant voluntarily waived his right to appeal was therefore premised on the court's understanding that appellant could waive his right to appeal despite not knowing "what the sentence would be." In Ex parte Delaney, however, which was decided only a few days after the trial court entered its findings, the court of criminal appeals concluded that "when there is not a recommended maximum punishment at the time a waiver is made, the consequences of a waiver cannot be known, and such a waiver is not knowing and intelligent." Id. Relying on Delaney, appellant insists he did not knowingly or voluntarily waive his right to appeal.
The State attempts to distinguish Delaney by arguing the facts of this case are "more similar" to Blanco v. State, 18 S.W.3d 218 (Tex.Crim.App. 2000). In Blanco, after the jury found the appellant guilty, he entered into an agreement not to appeal his conviction in exchange for the prosecutor's recommendation of a sixteen-year sentence. Id. at 219. The court of criminal appeals determined that because the appellant knew what his sentence would be if the trial court accepted his plea and knew what errors may have occurred during trial, appellant could be held to his bargain. Id. at 219-20. Applying Blanco to the facts of this case, the State argues that the prosecutor's recommendation of a life sentence on the plea agreement form shows appellant was fully aware of the likely consequences when he waived his right to appeal. The State also claims the recommended life sentence distinguishes the present case from Delaney, where there was no plea agreement or sentencing recommendation.
According to the testimony at the abatement hearing, the prosecutor placed a check mark next to the waiver of appeal provision in the "[a]greed sentence" paragraph of the plea agreement form, but she later drew a line through the entire paragraph after appellant rejected the State's offer of a life sentence. The prosecutor testified there was "no agreement as to sentencing in this case" and appellant chose to go "entirely open to the Court in terms of what kind of sentence he would get." In the section of the plea agreement form containing the actual waivers, the box next to the waiver of appeal provision above appellant's signature on the second page is left blank. Moreover, appellant testified he did not believe he was waiving his right to appeal and appellant's trial counsel likewise believed appellant retained the right to appeal the trial court's sentence. Because the record indicates appellant could not have known what his sentence would be at the time he entered his plea, Blanco is not controlling.
The State also claims the holding in Delaney "directly conflicts" with the court of criminal appeals' previous decision in Scott v. State, 690 S.W.2d 256 (Tex.Crim.App. 1985). However, we discern no conflict between Scott and Delaney. In Scott, the court was construing a specific statute that allowed magistrate judges to hear "negotiated" pleas of guilty where no agreement as to punishment was reached. Id. at 257. The court stressed that the statute itself "simply referred to a plea of guilty entered pursuant to a plea bargain" without mention of any agreement as to punishment. Id. at 258.
The State further argues the holding of Delaney raises "serious public policy implications because it essentially eliminates a defendant's and the State's right to enter into a plea bargain for something other than a sentence in exchange for a defendant's waiver of the right to appeal." However, a decision of the court of criminal appeals is binding precedent and we are required to follow it. Therefore, applying Delaney to the facts of this case, we conclude appellant did not waive his right to appeal. We deny the State's motion to dismiss.
Restitution
Having concluded we have jurisdiction, we turn to appellant's first issue, which argues (1) the trial court erred in ordering him to pay $6,000 restitution because the judgment does not name the party to whom the restitution should be paid and (2) there was insufficient evidence to support the amount of restitution ordered by the trial court.
An appellate court reviews challenges to restitution orders under an abuse of discretion standard. Cartwright v. State, 605 S.W.2d 287, 289 (Tex.Crim.App. [Panel Op.] 1980); Drilling v. State, 134 S.W.3d 468, 469 (Tex.Crim.App. 2004). An abuse of discretion by the trial court in setting the amount of restitution will implicate due process considerations. Campbell v. State, 5 S.W.3d 693, 696 (Tex.Crim.App. 1999). When there is insufficient evidence to support the amount of restitution ordered by the trial court, the proper procedure 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. See Barton v. State, 21 S.W.3d 287, 290 (Tex.Crim.App. 2000); Drilling, 134 S.W.3d at 471.
In addition to any fine authorized by law, a sentencing court may order the defendant to make restitution to any victim of the offense. See Tex. Code Crim. Proc. Ann. art. 42.037(a) (Vernon Supp. 2005). If the offense results in personal injury to the victim, the court may order the defendant to make restitution to the victim for any expenses incurred by the victim as a result of the offense or to the compensation fund for payments made to or on behalf of the victim. Id. art 42.037(b)(2). The standard of proof for determining restitution is a preponderance of the evidence. Id. art. 42.037(k). The burden of proving the amount of loss sustained by the victim is on the prosecuting attorney. Id. The trial court may not order restitution for a loss if the victim has or will receive compensation from another source. See id. art. 42.037(f)(1). Due process places three limitations on the restitution a trial court can order: (1) the amount must be just and supported by a factual basis within the record; (2) the restitution ordered must be for the offense for which the defendant is criminally responsible; and (3) the restitution must be for the victim or victims of the offense for which the defendant is charged. See Campbell, 5 S.W.3d at 696-97; Martin v. State, 874 S.W.2d 674, 677-78 (Tex.Crim.App. 1994); Drilling, 134 S.W.3d at 470. There must be sufficient evidence in the record to support the trial court's order. Cartwright, 605 S.W.2d at 289.
Subsection (b)(2) of article 42.037 was amended in 2005 to delete a provision authorizing payment for "an amount equal to the cost of necessary medical and related professional services and devices," as well as other provisions concerning reimbursement for rehabilitation expenses and lost income. See id. art. 42.037(b)(2), as amended by Acts 2005, 79th Leg., ch. 969, § 1, 2005 Tex. Gen. Laws 3244, effective September 1, 2005. Because the judgment, which includes the restitution order, was entered October 6, 2005, the amendment applies to the present case.
Appellant first claims the trial court erred by failing to name the party to whom the restitution should be paid. The third page of the trial court's judgment contains the following statement:
When it is shown above that restitution has been ordered but, the court determines that the inclusion of the victim's name and address in the judgment is not in the best interests of the victim, the person or agency whose name and address is set out in the judgment will accept and forward the restitution payments to the victim.
Page two of the judgment contains the following stamped statement, which appears just above the trial judge's signature: "Immediately upon release, defendant must report in person to the Felony Collections Dept., 2nd fl., Rm. C2-3, Crowley Courts Bldg., Dallas, TX, for the payment arrangement of court ordered costs, fines and/or attorney fees." Therefore, it appears from the record that the Felony Collections Department has been named as the payee in place of the victim. A trial court may not order restitution to be paid to a person who was not a victim of the charged offense. See Martin, 874 S.W.2d at 677-78; Montgomery v. State, 83 S.W.3d 909, 912 (Tex.App.-Eastland 2002, no pet.). In order to preserve error concerning a restitution order, however, a defendant must make a timely and specific objection. Tex. R. App. P. 33.1(a)(1)(A); see Idowu v. State, 73 S.W.3d 918, 921 (Tex.Crim.App. 2002) ("If a defendant wishes to complain about the appropriateness of (as opposed to the factual basis for) a trial court's restitution order, he must do so in the trial court. . . ."); see also Lemos v. State, 27 S.W.3d 42, 47 (Tex.App.-San Antonio 2000, pet. ref'd) (concluding defendant waived complaint). There is no evidence in the record to reflect appellant made any objection to the restitution order. Thus, appellant has not preserved the error.
The court of criminal appeals also noted, however, that it ordinarily allows defendants to raise challenges to the sufficiency of the evidence for the first time on appeal. See Idowu, 73 S.W.3d at 922. Accordingly, we conclude appellant has not waived his challenge to the sufficiency of the evidence. We will therefore address appellant's argument that the evidence is insufficient to support the amount of restitution ordered by the trial court.
During the punishment hearing, Suzanne Cuaron testified that she had medical bills for "between probably 12 and 15,000" dollars as a result of injuries sustained during the struggle with appellant. She also testified that her insurance had paid a portion of her medical bills but "they're still wanting. . . a hefty amount that" she could not afford. She explained that she was responsible for both co-pays and medical expenses. There was, however, no testimony concerning her actual out-of-pocket expenses or the payout by the insurance company. There is no medical or insurance documentation in the record. Nor is there is any indication she received payments from the victim's compensation fund.
Although the trial court did not specifically order restitution to be paid to Cuaron, based on the record in this case, we conclude the restitution order applies to her. Only Cuaron testified about a monetary loss. The owner of the home where the assault occurred testified about some jewelry which was not recovered and repairs that had to be made to her home, but she did not testify regarding the actual cost of these repairs or the insured value of the stolen property and she did not indicate whether she was reimbursed for these losses by an insurance company.
Based on the record before us, we conclude there is insufficient evidence to support the amount of restitution ordered by the trial court. Because Cuaron testified she would only be liable for some undetermined portion of the total expenses, her testimony was insufficient, given the present wording of the statute, to support the $6,000 figure assessed by the trial court. We therefore abate this appeal, set aside the amount of restitution, and remand this case to the trial court for a new restitution hearing consistent with this opinion. See Barton, 21 S.W.3d at 290; Drilling, 134 S.W.3d at 471; Montgomery, 83 S.W.3d at 913.