Lionel Edwin Snow v. State ( 2014 )

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-12-00573-CR
Lionel Edwin Snow, Appellant
v.
The State of Texas, Appellee
FROM THE DISTRICT COURT OF BELL COUNTY, 426TH JUDICIAL DISTRICT
NO. 69572, HONORABLE FANCY H. JEZEK, JUDGE PRESIDING
MEMORANDUM OPINION
A jury found appellant Lionel Edwin Snow guilty of two counts of aggravated
sexual assault. See Tex. Penal Code § 22.021. Snow pleaded “true” to an enhancement allegation,
and the trial court sentenced him to forty-five years’ imprisonment for each count. On appeal,
Snow asserts that the evidence is insufficient to support the trial court’s judgment requiring him
to pay restitution for the cost of a sexual assault exam performed on the victim. We affirm the
judgment of the trial court.
DISCUSSION
Snow asserts that the trial court erred in ordering him to pay restitution for the
cost of performing a sexual assault exam on the victim the morning after the sexual assault.1
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Given that Snow does not challenge his underlying conviction or sentence, we need not
recite the facts of the underlying sexual assault.
Specifically, Snow asserts that there is no competent evidence in the record to support the
trial court’s finding that the exam cost $615.00. Therefore, according to Snow, that portion of
the restitution order should be deleted from the judgment.
We review a trial court’s restitution order for an abuse of discretion. Cartwright
v. State, 605 S.W.2d 287, 289 (Tex. Crim. App. 1980). A trial court abuses its discretion if its
decision lies outside the zone of reasonable disagreement. Casey v. State, 215 S.W.3d 870, 879
(Tex. Crim. App. 2007). “The amount of the restitution must be just, and it must have a factual
basis within the loss of the victim.” Campbell v. State, 5 S.W.3d 693, 696 (Tex. Crim. App. 1999).
The restitution may also include an amount to compensate the Texas “victims of crime fund . . . to
the extent that fund has paid compensation to or on behalf of the victim.” See Tex. Code Crim. Proc.
art. 42.037(a).
Snow asserts that the only basis for the trial court’s valuation of the cost of the sexual
assault exam was the presentence-investigation report (PSI). See id. art. 37.07, § 3(d) (authorizing
court to request, prior to punishment determination, preparation of PSI). Snow argues that because
the PSI was never offered or formally admitted as an exhibit, it cannot constitute a factual basis for
the cost of the sexual assault exam.2 Thus, according to Snow, there is no evidence in the record
which can support the trial court’s restitution order.
2
Snow also argues that the PSI is not part of the appellate record, and therefore should
not be considered by this Court. However, at the State’s request, the trial court supplemented
the appellate record to include the PSI, and thus the PSI is properly before us. See Brewer v. State,
No. 1270-03, 2004 WL 3093224, at *4 n.33 (Tex. Crim. App. May 19, 2004) (mem. op., not
designated for publication) (noting that trial court or party may supplement appellate record with
PSI); Rodriguez v. State, 71 S.W.3d 778, 780 (Tex. App.—Texarkana 2002, no pet.) (“There is
no question of our authority in this case to order the record supplemented with the PSI report.”).
2
It is well established that a trial court may consider the contents of a PSI regardless
of whether the report was formally admitted into evidence. See Smith v. State, 227 S.W.3d 753,
758–59 (Tex. Crim. App. 2007) (noting court could consider un-admitted PSI in determining
punishment); Fryer v. State, 68 S.W.3d 628, 631 (Tex. Crim. App. 2002). Furthermore, “the
rules of evidence do not apply to the contents of the PSI.” Fryer, 68 S.W.3d at 631. Therefore, the
trial court may consider the information contained within the PSI regardless of whether the
information would otherwise violate rules concerning hearsay, admissibility of expert opinion, or
Confrontation Clause objections. See Stringer v. State, 309 S.W.3d 42, 46–48 (Tex. Crim. App.
2010). Thus, the trial court could properly consider the PSI in this case in determining the proper
amount of restitution.
Under the heading “Total Restitution,” the PSI in this case states that $615.00 is
owed to the “Office of the Attorney General—Crime Victims’ Compensation” for the cost of a
sexual assault exam. Snow’s trial counsel was given a copy of this PSI prior to the punishment
hearing, and when the trial court asked defense counsel if he wished to make any objections or
corrections to the report, Snow’s counsel responded “No, Judge, there are none.” See Tex. Code
Crim. Proc. art. 42.12, § 9(d)–(e) (allowing defendant opportunity to review and challenge contents
of PSI). Snow did not challenge the validity of the amount of restitution in the PSI, and thus the
trial court could have reasonably concluded that the information in the PSI was accurate. See Bell
v. State, 155 S.W.3d 635, 639 (Tex. App.—Texarkana 2005, no pet.) (noting it is defendant’s burden
to prove information in PSI is inaccurate).
Given that the PSI provides a factual basis from which the trial court could have
determined the amount owed to the victims of crime fund for the sexual assault exam, we conclude
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that the there is sufficient evidence to support the trial court’s order requiring Snow to pay $615.00
in restitution to the fund. See Tex. Code Crim. Proc. art. 42.037(a) (stating restitution can include
reimbursement to victims of crime fund). Therefore, we overrule Snow’s sole issue on appeal.
CONCLUSION
Having overruled Snow’s sole issue on appeal, we affirm the trial court’s judgment
of conviction.
__________________________________________
Scott K. Field, Justice
Before Chief Justice Jones, Justices Goodwin and Field
Affirmed
Filed: July 10, 2014
Do Not Publish
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