Frank Ortegon v. State

Opinion issued December 6, 2016
In The
Court of Appeals
For The
First District of Texas
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NO. 01-15-00880-CR
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FRANK ORTEGON, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 21st District Court
Washington County, Texas
Trial Court Case No. 16973
OPINION
A jury convicted appellant, Frank Ortegon, of the first-degree felony offense
of aggravated robbery and, after appellant pleaded true to the allegations in two
enhancement paragraphs, assessed his punishment at forty years’ confinement.1 In
one issue, appellant contends that the trial court improperly required him to pay
restitution to the complainant because the jury did not specify restitution as part of
his sentence in its punishment verdict. Appellant requests that this Court modify his
judgment of conviction to delete the restitution requirement.
We affirm.
Background
On October 10, 2013, the complainant, Tenola Washington, was working at
an Exxon station in Chappell Hill, Texas. Around 11:00 p.m., after all of the
customers and the cashier had left, Washington locked the store and began cleaning.
Washington believed he was alone in the store at that time, but when he walked
down the hall, a man, later identified as appellant, jumped out of a room carrying a
gun. Appellant pointed the gun at Washington and demanded his wallet, which had
about $300 dollars in it, his cell phone, and his keys. Appellant also forced his way
into the office of the store, but Washington did not know whether appellant took any
money or anything else from the office. Appellant tied Washington’s hands with
duct tape, put a bag over his head, and left him in a back room of the store. After
tying Washington up, appellant called an unknown individual, and Washington later
1
See TEX. PENAL CODE ANN. § 29.03(a)(2) (West 2011).
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heard two other people, in addition to appellant, talking inside the store. Washington
waited for about forty-five minutes until he could no longer hear anyone else in the
store and then he removed the bag from his head and walked down the street, while
still tied up, to his boss’s son’s house to tell him about the robbery. Officers later
arrested appellant, along with several accomplices, for this offense.
The jury ultimately convicted appellant of the robbery and, after appellant
pleaded true to the allegations in two enhancement paragraphs, assessed his
punishment at forty years’ confinement.2 The punishment charge did not ask the
jury about restitution to the complainant, and the jury did not award restitution in its
punishment verdict.
When the trial court orally pronounced appellant’s sentence, in addition to
stating the length of appellant’s confinement, the amount of credit for time served,
and the requirement that appellant pay court costs, the court also stated that the
written judgment of conviction “will also include a requirement for payment of $300
in restitution for the cash money that was stolen from the victim, Tenola
Washington.” The trial court then advised appellant of his appellate rights and asked
if appellant had any questions. Appellant asked about the possibility of an appeal
2
On appeal, appellant does not challenge the jury’s guilty verdict or its punishment
verdict.
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bond. Neither appellant nor his trial counsel objected to the trial court’s imposing a
restitution requirement.
The written judgment included a requirement that appellant pay $300 in
restitution to the complainant. Appellant did not file a post-judgment motion
challenging the propriety of this requirement. This appeal followed.
Propriety of Restitution Order
In his sole issue, appellant contends that the trial court improperly required
him to pay restitution to the complainant because he elected to have the jury assess
his punishment, and the jury did not impose a restitution requirement in its
punishment verdict.3 Appellant thus argues that the restitution order is void and that
this Court should modify the judgment of conviction to delete this requirement.
We review challenges to restitution orders for an abuse of discretion. See
O’Neal v. State, 426 S.W.3d 242, 246 (Tex. App.—Texarkana 2013, no pet.). Code
3
The State argues that appellant failed to preserve this complaint for appellate review
by failing to object to the restitution requirement. “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); see TEX.
R. APP. P. 33.1(a) (providing general preservation of error requirements). Here,
appellant challenges the appropriateness of, not the factual basis for, the trial court’s
restitution order. When the trial court orally pronounced appellant’s sentence, it
expressly stated that it was imposing a restitution requirement. Appellant did not
object at this time. The written judgment of conviction also contained a restitution
requirement. Appellant did not file a motion for new trial or other post-judgment
motion challenging this requirement. By failing to either object or file a post-
judgment motion challenging the propriety of the restitution requirement, appellant
failed to preserve this complaint for appellate review. See Idowu, 73 S.W.3d at 921.
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of Criminal Procedure article 42.037 authorizes a trial court to award restitution to
the victim of a criminal offense and provides:
In addition to any fine authorized by law, the court that sentences a
defendant convicted of an offense may order the defendant to make
restitution to any victim of the offense . . . . If the court does not order
restitution or orders partial restitution under this subsection, the court
shall state on the record the reasons for not making the order or for the
limited order.
TEX. CODE CRIM. PROC. ANN. art. 42.037(a) (West Supp. 2015) (emphasis added).
Article 42.037 also directs the trial court, when determining whether to order
restitution and the amount of restitution, to consider “the amount of the loss
sustained by any victim” and “other factors the court deems appropriate.” Id. art.
42.037(c). The State bears the burden of “demonstrating the amount of the loss
sustained by a victim as a result of the offense.” Id. art. 42.037(k).
The Court of Criminal Appeals has held that restitution “is a victim’s statutory
right.” Burt v. State, 445 S.W.3d 752, 756 (Tex. Crim. App. 2014); Hanna v. State,
426 S.W.3d 87, 91 (Tex. Crim. App. 2014) (“Restitution is not only a form of
punishment, it is also a crime victim’s statutory right.”). In Burt, the court described
several purposes that restitution orders serve:
First, it restores the victim to the “status quo ante” position he was in
before the offense. Second, restitution serves as appropriate
punishment for the convicted criminal. We have said, “[a]s
punishment, restitution attempts to redress the wrongs for which a
defendant has been charged and convicted in court.” Third, because
restitution forces the offender to “address and remedy the specific harm
that he has caused,” it aids in the rehabilitation process as “it forces the
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defendant to confront, in concrete terms, the harm his actions have
caused.” Fourth, restitution acts as a deterrent to crime. 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. Further, the statute provides that a parole panel “shall
order the payment of restitution ordered” under Article 42.037, and it
may revoke a defendant’s parole or mandatory supervision if he fails to
comply with the trial judge’s restitution order.
445 S.W.3d at 756–57 (internal citations omitted); Hanna, 426 S.W.3d at 91 (“The
legislature intended restitution to ‘adequately compensate the victim of the offense’
in the course of punishing the criminal offender.”) (quoting Cabla v. State, 6 S.W.3d
543, 545 (Tex. Crim. App. 1999)). Due to these purposes, courts interpret restitution
statutes “liberally to effectuate fairness to the victims of crime.” Burt, 445 S.W.3d
at 757; see Hanna, 426 S.W.3d at 91 (“A broad interpretation of the restitution
statutes provides judges with ‘greater discretion in effectuating opportunities for
rehabilitating criminals, deterring future harms, and efficiently compensating
victims.’”).
Due process places three limitations on the restitution that a trial court may
order: (1) the restitution ordered must be only for the offense for which the defendant
is criminally responsible; (2) the restitution must be only for the victim or victims of
the offense for which the defendant is charged; and (3) the amount must be just and
supported by a factual basis in the record.4 Burt, 445 S.W.3d at 758; Campbell v.
4
Although appellant challenges only the propriety of the trial court’s awarding
restitution in the absence of a jury finding on restitution, to the extent appellant also
6
State, 5 S.W.3d 693, 696–97 (Tex. Crim. App. 1999). “[F]or purposes of the
restitution statute, a ‘victim’ is any person who suffered loss as a direct result of the
criminal offense,” and this “includes the notion of both actual and proximate
causation.” Hanna, 426 S.W.3d at 94–95.
Here, appellant argues that the trial court improperly ordered restitution
because he elected to have the jury assess punishment and restitution is a form of
punishment, but the jury did not include a restitution finding in its punishment
verdict. Appellant contends that, as a result, the trial court’s restitution order exceeds
the jury’s punishment verdict and is therefore void. Appellant requests that this
Court delete the restitution requirement from the judgment of conviction.
Appellant acknowledges that article 42.037 states that the trial court may
order the defendant to make restitution, but he argues that because restitution is
argues that the restitution award in this case does not comport with due process, we
note that this restitution award complies with each of the three limitations set out by
the Court of Criminal Appeals. Here, the trial court awarded restitution for the
aggravated robbery of Washington, and appellant does not challenge his conviction
for this offense or otherwise argue that he is not criminally responsible for this
offense. See Burt v. State, 445 S.W.3d 752, 758 (Tex. Crim. App. 2014); Campbell
v. State, 5 S.W.3d 693, 697 (Tex. Crim. App. 1999). The trial court awarded
restitution only to Washington, the complainant of the charged offense. See Burt,
445 S.W.3d at 758; Campbell, 5 S.W.3d at 697. And the trial court awarded $300
in restitution to Washington, and Washington testified that appellant stole $300
from his wallet during the robbery. The amount of restitution ordered by the trial
court is thus just and supported by a factual basis in the record. See Burt, 445
S.W.3d at 758; Campbell, 5 S.W.3d at 696–97 (holding that restitution amount of
$100,000 had factual basis in record when evidence at trial demonstrated that total
monetary loss of nine of eleven named complainants was $108,324.56).
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punishment, this section conflicts with article 37.07, which allows for a defendant
to elect to have his punishment determined by the jury. See TEX. CODE CRIM. PROC.
ANN. art. 37.07, § 2(b) (West Supp. 2015). Appellant, however, cites no law
supporting the proposition that article 37.07 and article 42.037 conflict; he cites no
law prohibiting a trial court from imposing restitution after a defendant elects to have
the jury assess punishment; and he cites no law providing that a jury, as opposed to
the trial court, may impose a restitution requirement.
Article 42.037 clearly authorizes a trial court to order a defendant to make
restitution to a victim of the charged offense. See id. § 42.037(a). The statute does
not include any provision limiting its application to situations in which the trial court,
as opposed to the jury, assesses the defendant’s sentence. See Campbell, 5 S.W.3d
at 699 (stating that restitution must be only for offense for which defendant is
criminally responsible, be only for victim of charged offense, and amount must be
just and supported by factual basis in record, and these are “only limits” recognized
by Court of Criminal Appeals). Instead, the statute provides that, “[i]n addition to
any fine authorized by law, the court that sentences the defendant convicted of an
offense may order the defendant to make restitution to any victim of the
offense . . . .” TEX. CODE CRIM. PROC. ANN. art. 42.037(a) (emphasis added). In
construing a statute, we look to the plain language of the statute “in an effort to
‘effectuate the collective intent or purpose of the legislators who enacted the
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legislation.’” Hanna, 426 S.W.3d at 91 (quoting Boykin v. State, 818 S.W.2d 782,
785 (Tex. Crim. App. 1991)). Courts have historically “interpreted restitution
statutes liberally to effectuate fairness to the victims of crime.” Burt, 445 S.W.3d at
757; see Hanna, 426 S.W.3d at 96 (“But when the legislature specifically provides
a procedural mechanism for compensating the victims of crime, that mechanism
should not be unnecessarily or artificially limited.”).
Although appellant is correct that restitution “serves as appropriate
punishment for the convicted criminal,” restitution is also “a victim’s statutory right”
and serves several purposes beyond punishing the defendant. Burt, 445 S.W.3d at
756; Hanna, 426 S.W.3d at 91 (“Restitution is not only a form of punishment, it is
also a crime victim’s statutory right.”). The Court of Criminal Appeals has noted
that, at common law, “the power to impose restitution rested with the judge” and
that “[s]ince then, the authority to impose restitution has remained by statute with
the judge.” Campbell, 5 S.W.3d at 698; Green v. State, 880 S.W.2d 797, 802 & n.7
(Tex. App.—Houston [1st Dist.] 1994, no pet.) (“[C]ommon law does support that
ordering restitution is a matter of judicial discretion.”) (emphasis added). Our sister
courts have repeatedly held that it is “the function of the trial court, not the jury, to
establish the amount of restitution for inclusion in the sentence.” Davis v. State, 757
S.W.2d 386, 389 (Tex. App.—Dallas 1988, no pet.); see also O’Neal, 426 S.W.3d
at 246 (stating that “[a] sentencing court may order a defendant to pay restitution to
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the victim of an offense” and that it is duty of trial court to “resolve any dispute
relating to the proper amount or type of restitution”); Drilling v. State, 134 S.W.3d
468, 470 (Tex. App.—Waco 2004, order) (per curiam) (“A trial court is given broad
discretion when granting restitution.”).
We conclude that, although appellant elected to have the jury assess his
punishment, the trial court had statutory authority to impose a restitution order. We
therefore hold that the trial court did not abuse its discretion in ordering appellant to
pay $300 in restitution to Washington.
We overrule appellant’s sole issue.
Conclusion
We affirm the judgment of the trial court.
Evelyn V. Keyes
Justice
Panel consists of Justices Jennings, Keyes, and Brown.
Publish. TEX. R. APP. P. 47.2(b).
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