Valerie Ann Williams v. State ( 2011 )

Affirmed; Affirmed as Modified; and Memorandum Opinion filed March 29, 2011.

In The

Fourteenth Court of Appeals

NO. 14-10-00586-CR

NO. 14-10-00587-CR

NO. 14-10-00588-CR

NO. 14-10-00589-CR

NO. 14-10-00590-CR

NO. 14-10-00591-CR

NO. 14-10-00592-CR

NO. 14-10-00593-CR

Valerie Ann Williams, Appellant

v.

The State of Texas, Appellee

On Appeal from the 506th District Court

Waller County, Texas

Trial Court Cause Nos. 09-10-13345, 09-10-13346, 09-10-13347,

09-10-13348, 09-10-13349, 09-10-13350, 09-10-13351, 09-10-13352

MEMORANDUM OPINION

Appellant Valerie Ann Williams challenges the restitution orders entered as a condition of her probation in cause numbers 09-10-13351 and 09-10-13352.  She asserts that there is no evidence to support these orders.  We modify the judgments and affirm as modified.  We further affirm the judgments in cause numbers 09-10-13345 through 09-10-13350.

BACKGROUND

Appellant pleaded guilty to eight charges of cattle theft.  The following table lists relevant facts regarding each indictment:

Trial Court Cause No.	Date Alleged	Complainant
09-10-13345	08/20/09	Victor Molnosky
09-10-13346	08/23/09	David Glover
09-10-13347	08/26/09	David Glover
09-10-13348	08/21/09	Eula Richard
09-10-13349	08/28/09	Troy Tesch
09-10-13350	08/18/09	Forrest Busby
09-10-13351	09/08/09	Victor Molnosky
09-10-13352	09/04/09	Gary Gostecnik

Six of the charges were state-jail felonies.[1] Because of a change in the law, two of the charges were third-degree felonies.[2]  After accepting appellant’s guilty plea, the trial court ordered the preparation of a pre-sentence investigation (“PSI”) report and recessed the proceedings for a sentencing hearing to be held at a later date.

At appellant’s sentencing hearing, two law enforcement officials described their investigation into the offenses and how they discovered appellant’s involvement.  Additionally, Phylicia Glover, the wife of complainant David Glover, testified that appellant had stolen nine cattle from the Glover family and that the Glover family had purchased these cattle for roughly $4,600.  She further stated that the family had been reimbursed for about $2,400 from the auction houses that had sold the cattle, but explained that they had paid feed, medical, and hay bills for these cattle and had not gotten any of that money back.  Complainant Gary Gostecnik testified that appellant had taken two cattle from him; he estimated that they were worth about $400 each at the time of the theft.  Complainant Eula Richard also testified;[3] she stated that six of her cattle were stolen by appellant and that their value was approximately $3,000.  No objections were lodged to any of this valuation testimony.

In addition to this testimony, the trial court stated that it had reviewed the PSI report.  This report contained, among other things, details about the thefts and various estimates of the value of the cattle stolen.  The cattle stolen from the Glover family were valued in the report at $8,400.  Eula Richard valued her cattle at $3,000 in the report. Victor Molnosky valued his stolen cattle at $3,700.  Troy Tesch reported that the value of his stolen cattle was $6,550.  Finally, Gary Gostecnik valued the cattle stolen from him at $1,000.  No objections were made regarding the PSI report. 

In closing argument, appellant’s counsel stated:

I would urge this court that the court order restitution which at this point is around $10,000 or may be increased, that the court even allow the State, Ms. Williams I don’t think would have any problem agreeing, that the Court maybe even allow the State to go back and talk to some of these victims again and see whether or not there might be an increase in restitution based on factors like Ms. Glover brought up where there was an additional $2400 because they got market value, they took out a loan.  Well, it doesn’t make any sense that they should have to eat the balance of that loan.  So, there might be an increase in restitution.  And I would strongly urge the court to have the State go back and even re-evaluate restitution if necessary.  Grant a deferred in a -- honestly Judge, I think probably ten years would probably be -- what probably might be warranted in this case.  We’re talking about maybe 15 at least $10,000 restitution, $12,000 maybe a few more thousand, if that’s about a thousand or $1200 a year, then it’s an amount that doesn’t set a person up for failure but an amount that can reasonably be paid, and these victims can be compensated for what’s been taken from them, at least financially.

After hearing the evidence and reviewing the PSI report, the trial court sentenced appellant to fifteen months in state jail for each of the six state-jail felonies, with the sentences to run concurrently.  For the two third-degree felonies, the trial court sentenced appellant to seven years’ incarceration, but probated her sentences and placed her on community supervision for ten years[4]. The trial court ordered, among other conditions of community supervision, restitution as follows:  (1) $4,600 to David Glover; (2) $3,000 to Eula Richard; (3) $3,800 to Victor Molnosky; (4) $3,000 to Troy Tesch; and (5) $800 to Gary Gostecnik.  Appellant did not object to the restitution orders, but she refused to sign the acknowledgement that she (a) received a copy of her conditions of probation/community supervision and (b) fully understood the terms and conditions imposed.  No motion for new trial was filed, and this appeal timely followed.

ANALYSIS

When a defendant is placed on community supervision, the trial court may impose as a condition of community supervision a requirement that the defendant pay restitution to the victim(s) of the offense.  See Tex. Code Crim. Proc. arts. 42.037(h), 42.12 § 11(b).  In determining whether to order restitution and the appropriate amount of restitution, the court must consider the amount of the loss of the victim and other factors the court deems appropriate.  Id. 42.037(c).  A court may order a community supervision and corrections department to obtain information pertaining to these factors, which may be included in a PSI report if the court so directs the department.  Id. art. 42.037(j).  The State must establish the amount of the loss sustained by a victim by a preponderance of the evidence.  Id. art. 42.037(k).  The defendant bears the burden of demonstrating her financial resources and needs.  Id.  Any disputes regarding the proper amount or type of restitution must be resolved by the trial court.  Id. 

We review restitution orders under an abuse-of-discretion standard.  Cartwright v. State, 605 S.W.2d 287, 289 (Tex. Crim. App. [Panel Op.] 1980).  Due process considerations limit the restitution a trial court can order in three ways:  (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 Cabla v. State, 6 S.W.3d 543, 546 (Tex. Crim. App. 1999).  However, “even constitutional guarantees can be waived by failing to object properly at trial.”  Jimenez v. State, 32 S.W.3d 233, 235 (Tex. Crim. App. 2000) (en banc).  “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, and he must do so explicitly.”  Idowu v. State, 73 S.W.3d 918, 921 (Tex. Crim. App. 2002).

Here, in a single issue, appellant asserts that there is no evidence to support the trial court’s restitution orders made as a condition of her community supervision for the two third degree felonies.  She makes multiple arguments in support of her legal- sufficiency challenge.  First, in cause number 09-10-13351, in which Victor Molnosky was the complainant, she asserts the following:

· there is no evidence to support the amount of restitution ordered because Molnosky did not testify; 

· the trial court lacked authority to order appellant to make restitution payments to David Glover, Eula Richard, Troy Tesch, and Gary Gostecnik because they were not victims of this particular offense; and

· there is no evidence to support the amount of the restitution awarded to Glover, Tesch, and Gostecnik. 

In cause number 09-10-13352, in which Gostecnik was the complainant, appellant contends that:

· the trial court lacked authority to order her to make restitution payments to Glover, Richard, Tesch, and Molnosky because they were not victims of this particular offense; and

· the restitution ordered to be paid to Glover, Tesch, and Molnosky is not supported by the evidence.

First, regarding her complaints in both cause numbers that the trial court lacked authority to make restitution payments to victims other than those named in the indictments, a trial court may not order restitution to be paid to a person who was not a victim of the charged offense.  Leon v. State, 102 S.W.3d 776, 786 (Tex. App.—Houston [14th Dist.] 2003, no pet.) (citing Martin v. State, 874 S.W.2d 675-677–78 (Tex. Crim. App. 1994)).  But to preserve error regarding the appropriateness of a restitution order, a defendant must make a specific and timely objection. See id. (citing Tex. R. App. P. 33.1(a)(1)(A) and Idowu, 73 S.W.3d at 921 and concluding that defendant’s failure to object to restitution award to individual other than victim was waived by failing to object).  There is no evidence in our record that appellant objected on this basis to the restitution orders.  See id.; see also Lemos v. State, 27 S.W.3d 42, 47 (Tex. App.—San Antonio 2000, pet. ref’d) (concluding that, because appellant did not object to trial court’s restitution award to victim’s wife at trial, he waived his complaint).  Accordingly, she has not preserved error and has waived this complaint.  See Leon, 102 S.W.3d at 786; Lemos, 27 S.W.3d at 47.

No objection is necessary to preserve a claim of insufficiency of the evidence to support a restitution order.  Mayer v. State, 309 S.W.3d 552, 555 (Tex. Crim. App. 2010).  We thus must consider whether there is a factual basis within our record to support the restitution awards ordered to be made to (1) Molnosky, (2) Glover, (3) Tesch, and (4) Gostecnik.  See Cabla, 6 S.W.3d at 546 (requiring that restitution award be supported by factual basis in the record).  Because the trial court ordered the preparation of a PSI report, which was tendered to appellant and the State before the sentencing hearing, we may consider the information contained in the report in determining the sufficiency of the evidence in this case, along with the trial testimony.  See Tex. Code Crim. Proc. Ann. art. 42.037(c), (j); see also Maloy v. State, 990 S.W.2d 442, 445–46 (Tex. App.—Waco 1999, no pet.) (concluding that PSI report may be considered in determining sufficiency of evidence to support restitution order if the appellant has not lodged any objections to the report).

Although Molnosky did not testify, the PSI report, discussed above, indicates that Molnosky estimated the value of his stolen cattle to be $3,700.  The restitution award to Molnosky, however, is $3,800.  Accordingly, we modify the judgments to reflect an order of restitution to Molnosky in the amount of $3,700.  See Tex. R. App. P. 43.2(b).  

As described above, Glover’s wife testified that the cattle stolen from her family were purchased for $4,600, which is the amount of restitution ordered by the trial court.  She further testified that the family had received about $2,200 in restitution already for the stolen cattle.  The PSI indicates that the Glovers reported the value of the cattle stolen from them at $8,400.  Thus, we conclude that there is a factual basis for the award of $4,600.  Tesch did not testify at appellant’s sentencing hearing.  But the PSI report establishes that he estimated the value of the cattle stolen from him at $6,500.  The trial court ordered $3,000 in restitution to Tesch.  This amount is less than that included in the PSI.  We conclude there is a factual basis for this order. 

Finally, Gostecnik testified at the hearing that the value of his two stolen cattle was around $400 each at the time they were stolen.  The trial court ordered $800 in restitution to be paid to him.  There is therefore a factual basis for this award.  Accordingly, we overrule appellant’s legal sufficiency challenge.

CONCLUSION

With the exception of the restitution ordered paid to Molnosky, there is a factual basis in the record for each of the restitution amounts in the trial court’s restitution orders.  We modify the trial court’s judgments in cause numbers 09-10-13351 and 09-10-13352 to reflect a restitution amount of $3,700 ordered paid to Victor Molnosky.  We affirm the

judgments for these cause numbers as modified.  Because appellant has not raised any error regarding cause numbers 09-10-13345 through 09-10-13350, we affirm the trial court’s judgments for these cause numbers. 

                                                                        /s/        Adele Hedges

                                                                                    Chief Justice

Panel consists of Chief Justice Hedges and Justices Frost and Christopher.

Do Not Publish — Tex. R. App. P. 47.2(b).

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[1] Cause numbers 09-10-13345 through 09-10-13350.  See Act of May 28, 1995, 74th Leg. R.S., Ch. 318, § 9, 1995 Tex. Gen. Laws 2737–38 (providing that theft of fewer than ten head of cattle with a value of less than $20,000 is a state-jail felony), amended by Act of May 12, 2009, 81st Leg. R.S., Ch. 139, § 1, 2009 Tex. Gen. Laws 461–62 (now codified at Tex. Penal Code Ann. § 31.03(e)(5)(A) (West Supp. 2009).  Appellant has not raised any error regarding these cause numbers. 

[2] Cause numbers 09-10-13351 and 09-10-13352.  See Tex. Penal Code Ann. § 31.03(e)(5)(A) (providing that theft of cattle stolen during a single transaction and having an aggregate value of less than $100,000 is a third-degree felony).

[3] In the indictment and in the restitution orders, Ms. Richard’s name is spelled “Eula,” but in the reporter’s record, it is spelled “Ula.”  For the sake of consistency, we will spell her name “Eula” throughout this opinion.

[4] These sentences are to run concurrently.  Although both judgments have the restitution awards attached to them as conditions of appellant’s community supervision, presumably appellant will only pay the restitution awards once. Regardless, appellant has not raised error as to any possible double restitution award.