Brittany Michelle Barrett v. State ( 2015 )

ACCEPTED
12-15-00147-CR
TWELFTH COURT OF APPEALS
TYLER, TEXAS
10/22/2015 11:18:23 PM
Pam Estes
CLERK
NUMBERS 12-15-00145-CR & 12-15-00147-CR
IN THE TWELFTH DISTRICT COURT OF APPEALS FILED IN
12th COURT OF APPEALS
TYLER, TEXAS TYLER, TEXAS
10/22/2015 11:18:23 PM
PAM ESTES
Clerk
BRITTANY MICHELLE BARRETT,
Appellant
v.
THE STATE OF TEXAS,
Appellee
From the 114th District Court of Smith County, Texas
Trial Cause Numbers 114-0873-12 & 114-0875-12
STATE’S BRIEF
ORAL ARGUMENT NOT REQUESTED
D. MATT BINGHAM
Criminal District Attorney
Smith County, Texas
AARON REDIKER
Assistant District Attorney
State Bar of Texas Number 24046692
Smith County Courthouse, 4th Floor
Tyler, Texas 75702
Phone: (903) 590-1720
Fax: (903) 590-1719
Email: arediker@smith-county.com
TABLE OF CONTENTS
Index of Authorities ............................................................................................................ 2
Statement of Facts............................................................................................................... 3
Summary of Argument....................................................................................................... 5
I.ISSUE: The post-sentence investigation report, containing the itemized medical
bills of the victim in each case, provided the trial court with a sufficient factual
basis to support the award of restitution. ...................................................................... 6
Standard of Review ............................................................................................................. 6
Argument.............................................................................................................................. 6
Certificate of Compliance ................................................................................................ 10
Certificate of Service ........................................................................................................ 11
1
INDEX OF AUTHORITIES
Texas Cases
Burt v. State, 445 S.W.3d 752 (Tex. Crim. App. 2014) ................................................... 6, 8
Campbell v. State, 5 S.W.3d 693 (Tex. Crim. App. 1999) ................................................... 8
Cartwright v. State, 605 S.W.2d 287 (Tex. Crim. App. 1980) ............................................. 6
Idowu v. State, 73 S.W.3d 918 (Tex. Crim. App. 2002)....................................................... 8
Jones v. State, 713 S.W.2d 796 (Tex. App.—Tyler 1986, no pet.) ..................................... 8
Texas Statutes
Tex. Code Crim. Proc. Ann. art. 42.037 ............................................................................. 7
Texas Rules
Tex. R. App. P. 33.1 ............................................................................................................... 8
2
NUMBERS 12-15-00145-CR & 12-15-00147-CR
IN THE TWELFTH DISTRICT COURT OF APPEALS
TYLER, TEXAS
BRITTANY MICHELLE BARRETT,
Appellant
v.
THE STATE OF TEXAS,
Appellee
From the 114th District Court of Smith County, Texas
Trial Cause Numbers 114-0873-12 & 114-0875-12
STATE’S BRIEF
TO THE HONORABLE COURT OF APPEALS:
Comes now the State of Texas, by and through the undersigned Assistant
Criminal District Attorney, respectfully requesting that this Court overrule
appellant’s sole alleged issue and affirm the judgment of the trial court in the
above-captioned causes.
STATEMENT OF FACTS
On 5 September 2012, after appellant had pleaded “guilty” to the offense of
aggravated assault with a deadly weapon in cause numbers 114-0873-12 and 114-
3
0875-12, the trial court deferred a finding of guilt, placed appellant under
numerous conditions of community supervision for a term of ten years in each
case, and ordered restitution paid to the victims in an amount to be determined by
a post-sentence investigation (III Rep.’s R. at 12-13, 17-18). On 30 November 2012,
the trial court amended the conditions of appellant’s community supervision,
ordering her to pay restitution in the amount of $853.75 to East Texas Medical
Center (“ETMC”) and $731.96 to ETMC-EMS and in cause number 114-0873-12 and
$68,662.15 to Mother Francis Hospital in cause number 114-0875-12 (I Clerk’s R. at
53; II Clerk’s R. at 51). The orders amending the conditions of appellant’s
community supervision state that these amounts had been determined by a post-
sentence investigation (I Clerk’s R. at 53; II Clerk’s R. at 51). The post-sentence
investigation report appears to have been filed with the trial court on 9 October
2012, and matches the amounts reflected in the amendment orders (I Clerk’s R.
Supp. at 4-6; II Clerk’s R. Supp. at 4-6). The report contains an itemized statement
of charges for medical services provided to the victims named in the indictments
(I Clerk’s R. Supp. at 8, 10, 12, 14-18); II Clerk’s R. Supp. at 8, 10, 12, 14-18). On 12
4
May 2015, the trial court proceeded to final adjudication in each case, revoked
appellant’s community supervision, and ordered restitution in the amount of
$671.38 to East Texas Medical Center (“ETMC”) and $561.33 to ETMC/EMS in cause
number 114-0873-12 and $67,106.15 to Trinity Mother Francis in cause number
114-0875-12 (VI Rep.’s R. at 65).
SUMMARY OF ARGUMENT
The clerk’s record in each case was supplemented with the post-sentence
investigation report containing the itemized medical bills of the victims. As the
report was considered by the trial court in assessing the amount of restitution, the
record thus contains a factual basis for each award. Further, appellant’s challenge
to the propriety of the trial court’s award of restitution to a third party cannot be
raised for the first time on appeal.
5
I. ISSUE: The post-sentence investigation report, containing the itemized medical
bills of the victim in each case, provided the trial court with a sufficient factual
basis to support the award of restitution.
STANDARD OF REVIEW
A trial court’s restitution order is reviewed for an abuse of discretion.
Cartwright v. State, 605 S.W.2d 287, 289 (Tex. Crim. App. 1980). “[I]f there is a lack of
a sufficient factual basis—appellate courts should vacate and remand the case for
a restitution hearing because the trial judge is authorized to assess restitution, but
the amount of restitution is not (yet) supported by the record.” Burt v. State, 445
S.W.3d 752, 758 (Tex. Crim. App. 2014).
ARGUMENT
In a single issue, appellant argues that the evidence supporting the amount of
restitution ordered by the trial court in each case is legally insufficient (Appellant’s
Br. 4-9). Article 42.037 of the Code of Criminal Procedure provides in pertinent
part:
In addition to any fine authorized by law, the court that sentences a
defendant convicted of an offense may order the defendant to make
restitution to any victim of the offense or to the compensation to victims of
6
crime fund established under Subchapter B, Chapter 56, to the extent that
fund has paid compensation to or on behalf of the victim. If the court does
not order restitution or orders partial restitution under this subsection, the
court shall state on the record the reasons for not making the order or for
the limited order.
Tex. Code Crim. Proc. Ann. art. 42.037(a) (West 2014). “If the offense results in
personal injury to a victim, the court may order the defendant to make restitution
to: (A) the victim for any expenses incurred by the victim as a result of the offense;
or (B) the compensation to victims of crime fund to the extent that fund has paid
compensation to or on behalf of the victim.” Tex. Code Crim. Proc. Ann. art.
42.037(b)(2) (West 2014). “If a defendant is placed on community supervision or is
paroled or released on mandatory supervision, the court or the parole panel shall
order the payment of restitution ordered under this article as a condition of
community supervision, parole, or mandatory supervision.” Tex. Code Crim. Proc.
Ann. art. 42.037(h) (West 2014). “[D]ue process places three limitations on the
restitution a trial judge may order: (1) the restitution ordered must be for only the
offense for which the defendant is criminally responsible; (2) the restitution must
be for only the victim or victims of the offense for which the defendant is charged;
7
and (3) the amount must be just and supported by a factual basis within the record.”
Burt, 445 S.W.3d at 758.
Pre- and post-sentence investigation reports that include copies of bills
incurred by a victim for medical expenses resulting from the defendant’s offense
provide a sufficient factual basis for the trial court’s award of restitution. Jones v.
State, 713 S.W.2d 796, 797-798 (Tex. App.—Tyler 1986, no pet.). The record does not
show that appellant raised any objection to the post-sentence investigation report
or the amount of restitution assessed by the trial court in either case prior to this
appeal. See Garcia v. State, 930 S.W.2d 621, 623-624 (Tex. App.—Tyler 1996, no pet.)
(“A defendant bears the burden of proving that the information contained in a
presentence investigation report was materially inaccurate and that the judge
relied on inaccurate information.”). Appellant has therefore forfeited any alleged
error in the trial court ordering restitution payable to third party medical
providers rather than the victims. See Tex. R. App. P. 33.1(a); 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
8
restitution order, he must do so in the trial court, and he must do so explicitly.”).
Furthermore, as the post-sentence investigation report contains itemized medical
bills from which the trial court could have determined the amount owed to ETMC
and Trinity Mother Francis Hospital for their treatment of the victim in each case,
the evidence supporting the restitution orders is legally sufficient. See Jones, 713
S.W.2d at 797-98. Appellant’s sole alleged issue is thus without merit and should
be overruled.
PRAYER
WHEREFORE, PREMISES CONSIDERED, the State of Texas prays that the Court
overrule appellant’s alleged issue and affirm the judgment of the 114th District
Court of Smith County, Texas, in the above-captioned causes.
Respectfully submitted,
D. MATT BINGHAM
Criminal District Attorney
Smith County, Texas
/s/ Aaron Rediker
Aaron Rediker
Assistant District Attorney
9
SBOT #: 24046692
100 North Broadway, 4th Floor
Tyler, Texas 75702
Office: (903) 590-1720
Fax: (903) 590-1719 (fax)
arediker@smith-county.com
CERTIFICATE OF COMPLIANCE
Pursuant to Texas Rule of Appellate Procedure 9.4(i)(3), the undersigned
attorney certifies that the word count for this document is 1,153 words as
calculated by Microsoft Word 2016.
/s/ Aaron Rediker
Aaron Rediker
10
CERTIFICATE OF SERVICE
The undersigned attorney hereby certifies that on this 22nd day of October
2015, the State’s Brief in the above-numbered cause has been electronically filed,
and a legible copy of the State's Brief has been sent by email to James W. Huggler
Jr., attorney for appellant, at JHugglerLaw@sbcglobal.net.
/s/ Aaron Rediker
Aaron Rediker
11