Gutierrez-Rodriguez v. State , 2014 Tex. Crim. App. LEXIS 1468 ( 2014 )

IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NOS. PD-1026-13, PD-1027-13
DAISY GUTIERREZ-RODRIGUEZ, Appellant
v.
THE STATE OF TEXAS
ON STATE’S PETITION FOR DISCRETIONARY REVIEW
FROM THE SEVENTH COURT OF APPEALS
BRAZOS COUNTY
K ELLER, P.J., delivered the opinion of the Court in which P RICE,
W OMACK, K EASLER and H ERVEY, JJ., joined. C OCHRAN, J., filed a concurring opinion
in which M EYERS, J OHNSON and A LCALA, JJ., joined.
During two vehicle burglaries, a number of items were stolen. Appellant was charged with
misdemeanor theft for stealing two of these items. After she was convicted, the trial judge placed
her on probation and, as a condition of probation, imposed restitution for some of the missing items
that appellant had not been charged with stealing. Evidence in the record showed the value of these
items. Although the issue of restitution and the basis for imposing it were thoroughly discussed at
trial, appellant raised no objection to the restitution requirement. We must now determine whether
appellant may claim for the first time on appeal that the restitution was for items that she was not
GUTIERREZ-RODRIGUEZ- 2
charged with stealing. We hold that she may not, because, in accordance with our decision in Speth,1
she accepted the restitution requirement as a condition of probation by failing to object when she had
an opportunity to do so.
I. BACKGROUND
A. Trial
Daniel McCoy testified that in December of 2010 his truck was burglarized. An iPod and
several other items were stolen. Scott Blair testified that his truck was burglarized at around the same
time. A GPS unit and several other items were stolen. The iPod and GPS were recovered from
pawn shops, and appellant was identified as the person who had pawned them. Appellant was
charged by information with two Class B misdemeanors for the theft of the iPod and the GPS.2 At
trial, the complainants identified their iPod and GPS and testified to their value. Each complainant
also testified to the value of the other items that had been stolen at the same time as the iPod and
GPS. A jury found appellant guilty of both offenses. After appellant was found guilty, the jury was
discharged, and the trial court conducted a punishment hearing.
At the punishment hearing, the trial court indicated that it intended to assess punishment at
six months’ confinement, probated for one year, and assess an unprobated fine of $500 in each case.
The State asked if there would be “any monetary restitution.” The trial court agreed that there should
be, and the State discussed the amount of loss suffered by the complaining witnesses. The State
acknowledged that the items appellant was charged with stealing—the iPod and GPS—were
recovered in working order. However, there were other items that were not recovered, and their
1
6 S.W.3d 530 (Tex. Crim. App. 1999).
2
TEX . PENAL CODE § 31.03(a), (e)(2).
GUTIERREZ-RODRIGUEZ- 3
combined value totaled approximately $1,215.
After this discussion, the trial court sentenced appellant to 180 days’ confinement and a $200
fine for each case, suspended the sentences for one year, and probated the fines. As a condition of
probation, the court required restitution of $1,215 to be paid to the complaining witnesses to
compensate them for the loss of the unrecovered items.
B. Appeal
On appeal, appellant argued, among other things, that the restitution requirement was not
supported by evidence. The court of appeals agreed, holding that the restitution requirement lacked
any factual basis in the record.3 In response to the State’s argument that appellant had waived any
challenge to the restitution requirement by failing to object, the court of appeals relied upon Mayer4
and Idowu5 for the proposition that due process requires that the amount of restitution be supported
by a factual basis within the record.6 The court of appeals deleted the restitution requirement from
the conditions of probation and affirmed the judgments as modified.7
C. Discretionary Review
The State filed a petition for discretionary review, arguing that appellant had forfeited her
3
Gutierrez-Rodriguez v. State, 405 S.W.3d 936, 943 (Tex. App.–Amarillo 2013) (holding
that the “evidence at trial proved Appellant only pawned the GPS device and iPod knowing they
were stolen” and “did not establish that Appellant was guilty of either burglary” and “[b]oth items
were returned to their owners”) (emphasis in original).
4
Mayer v. State, 309 S.W.3d 552 (Tex. Crim. App. 2010).
5
Idowu v. State, 73 S.W.3d 918 (Tex. Crim. App. 2002).
6
Gutierrez-Rodriguez, 405 S.W.3d at 943 n.3.
7
Id. at 943.
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claim by failing to object at trial. The State also argued that, if appellant had not forfeited her claim,
the proper remedy would be to set aside the grant of community supervision, including the restitution
requirement, and remand for a new punishment hearing. We granted review to consider both issues.8
II. ANALYSIS
Ordinarily, to preserve an issue for appellate review, an appellant must have first raised the
issue in the trial court.9 However, it is also ordinarily true that a claim regarding sufficiency of the
evidence need not be preserved for review at the trial level.10 But, “imposition of a sentence is
profoundly different from the granting of community supervision.”11 Concepts of error-preservation
that apply in non-probation cases do not necessarily carry over to probation cases because probation
involves a kind of contractual relationship that does not exist in non-probation cases.
In Speth v. State, we held that, when probation is granted, the trial court extends clemency
to the defendant and creates a sort of contractual relationship.12 Conditions of probation that are not
objected to are affirmatively accepted as terms of the contract,13 unless the condition is one that the
criminal justice system finds to be intolerable and is therefore not a contractual option available to
8
(1) Must the defendant object at trial to complain on appeal about a condition of
community supervision requiring payment of restitution for an offense with which the defendant was
not charged?
(2) What is the appropriate remedy for an unauthorized restitution order as a condition of
community supervision when the trial court assesses punishment?
9
TEX . RULE APP. P. 33.1(a); Burt v. State, 396 S.W.3d 574, 577 (Tex. Crim. App. 2013).
10
Moore v. State, 371 S.W.3d 221, 225 (Tex. Crim. App. 2012); Moff v. State, 131 S.W.3d
485, 489 (Tex. Crim. App. 2004).
11
Speth, 6 S.W.3d at 532.
12
Id. at 533.
13
Id. at 534.
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the parties.14 Requiring restitution for stolen items that were not included in the charging instrument,
but that belonged to the complaining witnesses and were stolen during the same transaction as the
charged items, is not the sort of condition that the criminal justice system finds intolerable or
unconscionable. This is true even if appellant’s connection to the theft of these items was not
specifically established, as long as she had the opportunity to object and challenge such a connection.
A trial objection would have given the trial court the opportunity to reconsider the condition of
probation or to reconsider the appropriateness of the probation contract without the objected-to
condition.15 The record in the present case establishes that the restitution requirement was discussed
during the punishment stage hearing, so appellant had an opportunity to object to it.16 Consequently,
in accordance with Speth, she forfeited her complaint.
The cases cited by the court of appeals do not resolve the issue before us. The defendant in
Mayer did not receive probation, so there was no “contract.”17 Restitution was a condition of the
defendant’s probation in Idowu, but we declined to decide whether a sufficiency claim could be
forfeited because there was a factual basis for the amount of restitution ordered.18
We need not determine whether appellant’s complaint in the present case relates to the
“appropriateness” of restitution or to its “factual basis” because, by failing to object to the restitution,
14
Gutierrez v. State, 380 S.W.3d 167, 175-76 (Tex. Crim. App. 2012).
15
See Speth, 6 S.W.3d at 534-35.
16
See id. at 534 n.9 (rule that a defendant accepts the conditions of probation to which he
does not object assumes that the defendant knew what the conditions were in time to object at trial).
17
309 S.W.3d at 553 (sentenced to thirty years’ incarceration).
18
73 S.W.3d at 922.
GUTIERREZ-RODRIGUEZ- 6
appellant “affirmatively accepted [the] terms of the contract.”19 Regardless of how appellant’s
complaint is characterized, she bound herself to the terms of the probation contract by accepting the
benefits of the contract without objection.20
Because we hold that appellant forfeited her claim regarding the restitution requirement, we
do not reach the State’s second ground for review. The judgment of the court of appeals is reversed,
and the judgment of the trial court is affirmed.
Delivered: October 1, 2014
Publish
19
See Speth, 6 S.W.3d at 534.
20
The State contends that the claim here is one of “authorization” rather than “sufficiency.”
These concepts are not necessarily helpful, though, because the two concepts can overlap: in the
usual sufficiency claim, the “sufficiency” of the evidence is measured against allegations that are
“authorized” by the indictment. See Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997);
Curry v. State, 30 S.W.3d 394, 404 (Tex. Crim. App. 2000) (a sufficiency review must be based
upon the statutory elements of the offense “as modified by the charging instrument.”). We have
applied Malik’s general framework to at least some punishment issues. Roberson v. State, 420
S.W.3d 832, 841 (Tex. Crim. App. 2013). Given our disposition on the basis of Speth, we need not
decide whether Malik’s principles would require incorporating the charging instrument’s allegations
into a sufficiency review of the factual basis for restitution. Moreover, appellant is estopped from
complaining because she accepted the benefit of the contract: probation.