Kevin Miller v. State ( 2011 )


Menu:
  •                                   IN THE
    TENTH COURT OF APPEALS
    No. 10-10-00072-CR
    KEVIN MILLER,
    Appellant
    v.
    THE STATE OF TEXAS,
    Appellee
    From the 77th District Court
    Freestone County, Texas
    Trial Court No. 07-159-CR
    MEMORANDUM OPINION
    Kevin Miller was convicted of the offense of assault. TEX. PENAL CODE ANN.
    §22.01(a)(1) (West Pamp. 2010). He was sentenced to 12 months in jail. The sentence
    was suspended, and Miller was placed on community supervision for two years.
    Because the trial court did not abuse its discretion in ordering the amount of restitution,
    the trial court’s judgment is affirmed.
    BACKGROUND
    Although the stories of the players in this offense vary, the general account is
    that Miller found his estranged wife, Tonya, with another man at Tonya’s house. Miller
    initially grabbed Tonya by the back of her hair and threw her against the wall and on
    the ground. After Tonya tried to escape, Miller tore the telephone out of the wall and
    struck Tonya in the head with it. He also threw a bottle of wine at her and hit her. He
    held a knife to her throat. He then slapped her with his hand and struck her under the
    chin with his fist. He also knocked Tonya’s head into a counter, threw a wicker and
    wrought iron laundry basket on her, and kicked her. The trial court ordered restitution
    for Tonya’s injuries in the amount of $11,856.05.
    RESTITUTION
    In his sole issue, Miller complains about the amount of restitution the trial court
    ordered. The Texas Code of Criminal Procedure authorizes the sentencing court to
    order payment of restitution to the victim for losses sustained as a result of the
    convicted offense. TEX. CODE CRIM. PROC. ANN. art. 42.037(a) (West Supp. 2010). When
    calculating restitution in an offense that results in personal injury, 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;
    TEX. CODE CRIM. PROC. ANN. art. 42.037(b)(2)(A) (West Supp. 2010).
    While the sentencing court is authorized to order restitution, due process
    requires three restrictions on the restitution a trial court may order: (1) the amount must
    be just and supported by a factual basis within the record, (2) the restitution ordered
    Miller v. State                                                                      Page 2
    must be only for the offense for which the defendant is criminally responsible, and (3)
    the restitution ordered must be proper only for the victim or victims of the offense with
    which the offender is charged.        Cantrell v. State, 
    75 S.W.3d 503
    , 512 (Tex. App.—
    Texarkana 2002, pet. ref'd); see Cabla v. State, 
    6 S.W.3d 543
    , 546 (Tex. Crim. App. 1999).
    When we are asked to review a restitution order, we review the trial court's
    action for an abuse of discretion. Cartwright v. State, 
    605 S.W.2d 287
    , 288-89 (Tex. Crim.
    App. 1980); Maloy v. State, 
    990 S.W.2d 442
    , 444 (Tex. App.—Waco 1999, no pet.). An
    abuse of discretion occurs when a trial court's decision is so clearly wrong that it lies
    outside the "zone of reasonable disagreement." Gonzalez v. State, 
    117 S.W.3d 831
    , 839
    (Tex. Crim. App. 2003).
    At the punishment hearing, Tonya testified that her medical bills alone from the
    assault totaled almost $12,000. She stated that that amount did not include visits to the
    eye doctor, glasses, or counseling for her and her children. Tonya also stated that she
    received the medical bills from the hospital, the ultrasound the hospital performed, the
    doctors, the pharmacy, and dental. When asked for a specific dollar amount, Tonya
    testified that the bills totaled $11,856.05.
    Miller argues that the trial court erred in including any dental expenses in the
    restitution order because his expert testified at guilt/innocence that Tonya had loose
    teeth caused by periodontal disease and that her chipped teeth were caused by tooth
    decay. However, Tonya testified that Miller, at one point during his beating of her,
    slapped her with his hand and hit her under the chin with his fist. Tonya stated that
    she then spit out pieces of teeth.
    Miller v. State                                                                       Page 3
    Conflicts in testimony are resolved by the factfinder. See Chambers v. State, 
    805 S.W.2d 459
    , 461 (Tex. Crim. App. 1991) (A factfinder is entitled to judge the credibility
    of witnesses, and can choose to believe all, some, or none of the testimony presented by
    the parties.). The trial court resolved this apparent conflict against Miller. Accordingly,
    the trial court’s decision in including dental expenses in the amount of restitution
    ordered is not so clearly wrong that it lies outside the "zone of reasonable
    disagreement” as to be an abuse of discretion.
    CONCLUSION
    Miller’s sole issue is overruled, and the trial court’s judgment is affirmed.
    TOM GRAY
    Chief Justice
    Before Chief Justice Gray,
    Justice Davis, and
    Justice Scoggins
    Affirmed
    Opinion delivered and filed February 23, 2011
    Do not publish
    [CR25]
    Miller v. State                                                                         Page 4