Kevin Don Sinquefield v. State ( 2013 )

NOS. 12-13-00092-CR
12-13-00093-CR
IN THE COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS
KEVIN DON SINQUEFIELD, § APPEALS FROM THE 241ST
APPELLANT
V. § JUDICIAL DISTRICT COURT
THE STATE OF TEXAS,
APPELLEE § SMITH COUNTY, TEXAS
MEMORANDUM OPINION
Kevin Don Sinquefield appeals his convictions for robbery and forgery against an elderly
individual. In two issues on appeal, Appellant challenges the trial court’s assessment of
restitution. We affirm.
BACKGROUND
Appellant was charged by separate indictments with the offenses of robbery and forgery
against an elderly individual. Each indictment also included an enhancement paragraph, alleging
that Appellant had been convicted of a felony prior to the commission of the charged offense.
Appellant entered an open plea of “guilty” to the offenses charged in the indictments and pleaded
“true” to the enhancement paragraph in each indictment. In both cases, Appellant also signed an
agreed punishment recommendation in which he agreed to a special condition of his
recommended sentence “being payment of RESTITUTION in the amount to be determined by
the PSI.”
The trial court accepted Appellant’s pleas of guilty and adjudicated him guilty of robbery
and forgery against an elderly individual. The trial court also ordered a full presentence
investigation report (PSI) in both cases. In the combined PSI, restitution for the robbery offense
was stated to be $3,059.75, and restitution for the forgery offense was stated to be $6,850.00.
At the sentencing hearing, the trial court assessed Appellant’s punishment at life
imprisonment for his robbery conviction, along with court costs and restitution “as determined to
be due by a post-sentence.” Further, the trial court assessed Appellant’s punishment at twenty
years of imprisonment for his forgery conviction, along with court costs and restitution in an
amount to be determined by a “post-sentence.” The judgments of conviction included restitution
in the amounts stated in the PSI. The trial court ordered that Appellant’s sentences run
concurrently. This appeal followed.
RESTITUTION
In his first and second issues, Appellant argues that the restitution ordered in both cases
should be vacated because the trial court did not orally pronounce the amount of restitution in
open court.
Standard of Review
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. App.–Waco 2004, no pet.). In order to preserve
error concerning a restitution order, however, the record must show that a complaint was made to
the trial court by a timely request, objection, or motion that stated the grounds for the ruling that
the complaining party sought from the trial court with sufficient specificity to make the trial
court aware of the complaint, unless the specific grounds were apparent from the context. See
TEX. R. APP. P. 33.1(a)(1)(A); see also Lemos v. State, 27 S.W.3d 42, 47 (Tex. App.–San
Antonio 2000, pet. ref'd) (concluding defendant waived complaint by failing to dispute funeral
expenses portion of restitution order at sentencing). In other words, 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).
Applicable Law
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)
(West Supp. 2012). Article 42.03, Section 1(a) of the Texas Code of Criminal Procedure states
that a sentence shall be pronounced in the defendant’s presence. See TEX. CODE CRIM. PROC.
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ANN. art. 42.03, § 1(a) (West Supp. 2012). This means that a defendant’s sentence must be
orally pronounced in his presence. See Taylor v. State, 131 S.W.3d 497, 500 (Tex. Crim. App.
2004).
Analysis
Here, Appellant does not complain about the sufficiency of the evidence to support the
amount of the restitution awards or about restitution as a special condition of his recommended
sentence. Instead, he points out that the amounts of the awards were not orally pronounced in his
presence. However, we conclude that Appellant has waived his complaint.
Appellant argues that the facts in his case are similar to those in Burt v. State, 396
S.W.3d 574 (Tex. Crim. App. 2013). In Burt, the defendant complained that the restitution in
his orally pronounced sentence was different from the sentence in the written judgment, and that
the amount in the written judgment improperly included losses from alleged victims not named
in the indictment. See id. at 578. The court noted that the defendant could not have objected
during the oral pronouncement because at that point, he could not have known that the sentence
in the written judgment would be different from the orally pronounced sentence or that there
might be an error in the amount of restitution. See id. Nor could he have known to include
restitution as an issue in his motion for new trial because the written judgment was not issued
until after his motion for new trial was filed and heard. See id. Therefore, the court concluded
that the defendant did not forfeit his challenge to the restitution order because it was impossible
for him to raise the restitution issue at trial. See id.
Burt is readily distinguishable from the cases before us. In these cases, the trial court
orally pronounced that the amount of restitution would be “as determined to be due by a post-
sentence.” The judgment in each case included the amount of restitution stated in the PSI for the
corresponding offense. And the judgments were signed the day after the sentencing hearing.
Therefore, Appellant had ample opportunity to file a motion for new trial or other postjudgment
motion to complain that the trial court did not orally pronounce the amounts of restitution in
open court. However, he failed to do so. Consequently, unlike the defendant in Burt, Appellant
waived his challenge to the restitution orders because he failed to preserve his complaint in the
trial court. Accordingly, we overrule Appellant’s first and second issues.
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DISPOSITION
We affirm the judgments of the trial court.
JAMES T. WORTHEN
Chief Justice
Opinion delivered October 23, 2013.
Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.
(DO NOT PUBLISH)
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COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT OF TEXAS
JUDGMENT
OCTOBER 23, 2013
NO. 12-13-00092-CR
12-13-00093-CR
KEVIN DON SINQUEFIELD,
Appellant
V.
THE STATE OF TEXAS,
Appellee
Appeals from the 241st District Court
of Smith County, Texas (Tr.Ct.Nos. 241-1707-12; 241-1708-12)
THESE CAUSES came to be heard on the appellate record and briefs filed
herein, and the same being considered, it is the opinion of this court that there were no errors in
the judgments.
It is therefore ORDERED, ADJUDGED and DECREED that the
judgments of the court below be in all things affirmed, and that this decision be certified to the
court below for observance.
James T. Worthen, Chief Justice.
Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.