Randy Alan Hilliard v. State

NUMBER 13-18-00340-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
RANDY ALAN HILLIARD, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 249th District Court
of Somervell County, Texas.
MEMORANDUM OPINION
Before Chief Justice Contreras and Justices Longoria and Perkes
Memorandum Opinion by Chief Justice Contreras
Appellant Randy Alan Hilliard appeals from his conviction for burglary of a
habitation, a second-degree felony. See TEX. PENAL CODE ANN. § 30.02(c)(2) (West,
Westlaw through 2017 1st C.S.). By one issue, appellant argues the trial court abused
its discretion when it ordered him to pay $40,737.84 in restitution. We affirm.
I. BACKGROUND1
Appellant was indicted on two counts: (1) burglary of a habitation and (2)
unauthorized use of a vehicle. See id. §§ 30.02(c)(2), 31.07 (West, Westlaw through
2017 1st C.S.). The indictment included an enhancement allegation. Appellant entered
into a plea agreement with the State, signed a judicial confession to the burglary of a
habitation charge, and pleaded guilty to that offense. In turn, the State dropped count
two for unauthorized use of a vehicle and the enhancement paragraph, recommended
punishment to be assessed at twenty years’ imprisonment in the Texas Department of
Criminal Justice-Institutional Division (TDCJ-ID), and left the issue of restitution open for
the trial court’s determination. As part of the agreement, appellant waived his right to an
appeal, except as to the restitution hearing. The trial court accepted the plea bargain
agreement, found appellant guilty of burglary of a habitation, and sentenced him to twenty
years’ imprisonment in TDCJ-ID.
At the restitution hearing, the court heard testimony from the owner of the home
appellant burglarized, Ann Carver, and from the criminal investigator who worked the
case, Terry Early. Our review of the record shows Carver provided testimony regarding
the following itemized losses and damages she suffered as a result of the burglary,
totaling $40,837.04:
• $200 to repair a fence because appellant cut through it;
1This case is before this Court on transfer from the Tenth Court of Appeals in Waco pursuant to a
docket-equalization order issued by the Supreme Court of Texas. See TEX. GOV’T CODE ANN. § 73.001
(West, Westlaw through 2017 1st C.S.).
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• $2,323.04 to replace a jacuzzi tub in her bathroom because broken glass
that fell into it cut the tile and jacuzzi lining2;
• $1,493 to replace her electronic safe because appellant damaged the
safety mechanisms;
• $2,325 to repair damage to the floor in a hidden room in Carver’s home,
the specialized lock and door to that room, and the sheetrock of the walls
in the room because appellant damaged them;
• $640 to replace windows broken by appellant3;
• $1,070 to have everything cleaned up;
• $200 to have the broken windows boarded up;
• $300 to have somebody “clean up after the law enforcement was in there
and all”;
• $300 for her sister to come out to the home on the night of the incident
and on the day after the incident;4
• $10,000 in missing cash;
• $20,270 in missing jewelry;
• $1,000 in missing miscellaneous tools, including wrenches, saws, and a
crowbar;
• $30 for hot rollers that were stolen;
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Carver testified the jacuzzi had not yet been replaced but that she received an estimate from
Home Depot for the cost of replacing the Jacuzzi.
3 Carver testified that the window to her sun room was broken into, the picture window that goes
into the bathroom was also broken, and the storm window inside the picture window was also broken.
4 Carver was out of town on the day of the burglary.
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• an unspecified number of blue vases that appellant broke, valued at
$100 each;
• four or five antique perfume bottles valued at $100 each that appellant
broke; and
• $85 for a bottle of Beautiful by Estee Lauder that was stolen.
Early corroborated Carver’s testimony and testified that he asked Carver to provide him
with an itemized list of the damages and missing items, which she did. Early explained
the list Carver provided to him matched up with the testimony Carver provided at the
hearing. The trial court ordered appellant to pay $40,737.84 in restitution. This appeal
followed.
II. DISCUSSION
A. Applicable Law & Standard of Review
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. See TEX. CODE CRIM. PROC. ANN. art. 42.037(a) (West, Westlaw through 2017
1st C.S.). When calculating restitution in an offense that results in the damage or
destruction of property, the court may order the defendant:
(A) to return the property to the owner of the property or someone
designated by the owner; or
(B) if return of the property is impossible or impractical or is an inadequate
remedy, to pay an amount equal to the greater of:
(i) the value of the property on the date of the damage, loss, or
destruction; or
(ii) the value of the property on the date of sentencing, less the
value of any part of the property that is returned on the date
the property is returned.
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Id. art. 42.037(b)(1).
Article 42.037 also directs the trial court, when determining whether to order
restitution and the amount of restitution, to consider “the amount of loss sustained by any
victim” and “other factors the court deems appropriate.” Id. art. 42.037(c); Ortegon v.
State, 510 S.W.3d 181, 184 (Tex. App.—Houston [1st Dist.] 2016, no pet.); Sanders v.
State, 346 S.W.3d 26, 35 (Tex. App.—Fort Worth 2011, pet. ref’d); see Cabla v. State, 6
S.W.3d 543, 546 (Tex. Crim. App. 1999). Courts interpret restitution statutes “liberally to
effectuate fairness to the victims of the crime.” Burt v. State, 445 S.W.3d 752, 756 (Tex.
Crim. App. 2014); see Hanna v. State, 426 S.W.3d 87, 91 (Tex. Crim. App. 2014).
“Indeed, the law so favors crime victims’ compensation that our restitution statute requires
the trial judge to justify his decision not to order restitution to a crime victim.” Burt, 445
S.W.3d at 756 (citing TEX. CODE CRIM. PROC. ANN. art. 42.037(a)) (emphasis in original).
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 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. Miller v. State, 343 S.W.3d 499, 502 (Tex. App.—Waco 2011,
pet. ref’d); Cantrell v. State, 75 S.W.3d 503, 512 (Tex. App.—Texarkana 2002, pet. ref’d);
see Cabla, 6 S.W.3d at 546.
We review a trial court’s award of restitution for an abuse of discretion. Cartwright
v. State, 605 S.W.2d 287, 288–89 (Tex. Crim. App. 1980); Miller, 343 S.W.3d at 502. The
trial court abuses its discretion if it acts in an arbitrary or unreasonable manner.
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Montgomery v. State, 810 S.W.2d 372, 380 (Tex. Crim. App. 1990). A trial court abuses
its discretion when it sets restitution in an amount that is unjust or unsupported by facts.
Campbell v. State, 5 S.W.3d 693, 696 (Tex. Crim. App. 1999) (en banc); Sanders, 346
S.W.3d at 35. The State bears the burden of demonstrating the amount of the loss
sustained by the victim by a preponderance of the evidence. TEX. CODE CRIM. PROC. ANN.
art. 42.037(k); Campbell, 5 S.W.3d at 696–97.
B. Analysis
Appellant argues that the trial court’s award of $40,737.84 lacked a factual basis.
Specifically, appellant argues there was no documentary evidence to support an award
and that Carver’s testimony in support of the award was inconsistent.
“The amount of restitution must be just, and it must have a factual basis within the
loss of the victim.” Campbell, 5 S.W.3d at 696. As noted, the trial court must consider
(1) the amount of loss sustained by the victim and (2) other factors the court deems
appropriate. See TEX. CODE CRIM. PROC. ANN. art. 42.037(c). The victim’s “loss must be
a ‘but for’ result of the criminal offense and resulted ‘proximately,’ or foreseeably, from
the criminal offense.” Hanna, 426 S.W.3d at 95.
Evidence of damages can come from many sources, including expert testimony,
estimates from insurance adjusters, and lay testimony from a property owner about the
value of his property. Fuelberg v. State, 447 S.W.3d 304, 318 (Tex. App.—Austin 2014,
pet. ref’d); cf. Campbell v. State, 426 S.W.3d 780, 783–84 (Tex. Crim. App. 2014)
(explaining different methods of proving damages for criminal mischief by destruction).
Thus, contrary to appellant’s argument, there is no requirement that the State present
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documentary evidence in support of a restitution award, and appellant has not pointed us
to any authority requiring such.
Here, Carver testified to the losses itemized above, which total $40,837.04. Yet,
the trial court awarded a smaller amount in restitution: $40,737.84. Carver explained in
her testimony how the damages were caused by appellant during the burglary and how
appellant stole jewelry, cash, and other items. Carver also provided testimony regarding
the value of the stolen jewelry, cash, and other items. Early’s testimony supported and
corroborated Carver’s testimony. Thus, we conclude that the amount is just and
supported by a factual basis within the record. See Miller, 343 S.W.3d at 502; see, e.g.,
Maes v. State, 275 S.W.3d 68, 73 (Tex. App.—San Antonio 2008, no pet.) (concluding
that victim’s testimony admitted without objection was adequate to support the restitution
order); Burris v. State, 172 S.W.3d 75, 78 (Tex. App.—Fort Worth 2005, no pet.)
(concluding that testimony from victim with personal knowledge of the amount of
expenses incurred was adequate to support restitution order); Maloy v. State, 990 S.W.2d
442, 444–45 (Tex. App.—Waco 1999, no pet.) (same). Furthermore, the restitution
ordered was related only to the offense for which appellant is criminally responsible and
it applied only to the losses suffered by the victim of the offense. See Campbell, 5 S.W.3d
at 687 (“A trial court may not order restitution for an offense for which the defendant was
not criminally responsible”); Miller, 343 S.W.3d at 502. Therefore, the trial court did not
abuse its discretion when it ordered appellant to pay $40,737.84 in restitution, and we
reject appellant’s argument that the trial court’s restitution award lacked a factual basis.
Next, appellant argues that Carver’s testimony is questionable in several aspects.
Appellant argues that Carver’s testimony is questionable because she did not file an
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insurance claim with her homeowner’s insurance policy. Appellant cites no authority, and
we have found none, requiring that a home owner file a claim with their homeowner’s
insurance policy as a prerequisite to a restitution award. In any event, the trial court was
the exclusive judge of Carver’s credibility. Accordingly, we reject this argument.
Appellant also argues that Carver’s testimony concerning the jacuzzi was
inconsistent. Carver initially testified that the jacuzzi had been replaced but later
explained that the jacuzzi had not yet been replaced. Carver explained the amount she
provided was for the cost of replacing the jacuzzi, which she obtained from an estimate
from Home Depot. As noted earlier, lay testimony about the value of the property is
acceptable as a source of value for the purpose of restitution, and we concluded the trial
court had a factual basis for the restitution award. See Fuelberg, 447 S.W.3d at 318; cf.
Campbell, 426 S.W.3d at 783–84 see also TEX. CODE CRIM. PROC. ANN. art. 42.037(k);
O’Neal v. State, 426 S.W.3d 242, 246–47 (Tex. App.—Texarkana 2013, no pet.) (noting
that the trial court is the judge of the credibility of the witnesses in a restitution hearing
and resolves any factual disputes regarding the appropriate restitution amount). Because
the trial court had a factual basis for the restitution award concerning the jacuzzi, the trial
court’s restitution award for the loss incurred by Carver from the damage done to the
jacuzzi was not unreasonable or arbitrary. See Campbell, 5 S.W.3d at 696; Montgomery,
810 S.W.2d at 380; Miller, 343 S.W.3d at 502. Thus, we also reject this argument.
Finally, appellant argues that, even if all the amounts testified to by Carver are
added up, the trial court’s award is still over $300 more than the amounts testified to. We
disagree. Our review of the record shows that Carver testified there were four or five
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antique perfume bottles broken with a value of $100 each. Appellant has only included
the cost of one of the perfume bottles in his calculation. We reject this argument.
We overrule appellant’s sole issue.
III. CONCLUSION
We affirm the trial court’s judgment.
DORI CONTRERAS
Chief Justice
Do not publish.
TEX. R. APP. P. 47.2(b).
Delivered and filed the
4th day of April, 2019.
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