            IN THE COURT OF CRIMINAL APPEALS
                        OF TEXAS
                               NOS. PD-1026-13, PD-1027-13



                     DAISY GUTIERREZ-RODRIGUEZ, Appellant

                                                v.

                                  THE STATE OF TEXAS

             ON STATE’S PETITION FOR DISCRETIONARY REVIEW
                  FROM THE SEVENTH COURT OF APPEALS
                             BRAZOS COUNTY

            K ELLER, P.J., delivered the opinion of the Court in which P RICE,
W OMACK, K EASLER and H ERVEY, JJ., joined. C OCHRAN, J., filed a concurring opinion
in which M EYERS, J OHNSON and A LCALA, JJ., joined.

       During two vehicle burglaries, a number of items were stolen. Appellant was charged with

misdemeanor theft for stealing two of these items. After she was convicted, the trial judge placed

her on probation and, as a condition of probation, imposed restitution for some of the missing items

that appellant had not been charged with stealing. Evidence in the record showed the value of these

items. Although the issue of restitution and the basis for imposing it were thoroughly discussed at

trial, appellant raised no objection to the restitution requirement. We must now determine whether

appellant may claim for the first time on appeal that the restitution was for items that she was not
                                                                   GUTIERREZ-RODRIGUEZ- 2

charged with stealing. We hold that she may not, because, in accordance with our decision in Speth,1

she accepted the restitution requirement as a condition of probation by failing to object when she had

an opportunity to do so.

                                         I. BACKGROUND

                                               A. Trial

        Daniel McCoy testified that in December of 2010 his truck was burglarized. An iPod and

several other items were stolen. Scott Blair testified that his truck was burglarized at around the same

time. A GPS unit and several other items were stolen. The iPod and GPS were recovered from

pawn shops, and appellant was identified as the person who had pawned them. Appellant was

charged by information with two Class B misdemeanors for the theft of the iPod and the GPS.2 At

trial, the complainants identified their iPod and GPS and testified to their value. Each complainant

also testified to the value of the other items that had been stolen at the same time as the iPod and

GPS. A jury found appellant guilty of both offenses. After appellant was found guilty, the jury was

discharged, and the trial court conducted a punishment hearing.

        At the punishment hearing, the trial court indicated that it intended to assess punishment at

six months’ confinement, probated for one year, and assess an unprobated fine of $500 in each case.

The State asked if there would be “any monetary restitution.” The trial court agreed that there should

be, and the State discussed the amount of loss suffered by the complaining witnesses. The State

acknowledged that the items appellant was charged with stealing—the iPod and GPS—were

recovered in working order. However, there were other items that were not recovered, and their


        1
            6 S.W.3d 530 (Tex. Crim. App. 1999).
       2
            TEX . PENAL CODE § 31.03(a), (e)(2).
                                                                  GUTIERREZ-RODRIGUEZ- 3

combined value totaled approximately $1,215.

       After this discussion, the trial court sentenced appellant to 180 days’ confinement and a $200

fine for each case, suspended the sentences for one year, and probated the fines. As a condition of

probation, the court required restitution of $1,215 to be paid to the complaining witnesses to

compensate them for the loss of the unrecovered items.

                                             B. Appeal

       On appeal, appellant argued, among other things, that the restitution requirement was not

supported by evidence. The court of appeals agreed, holding that the restitution requirement lacked

any factual basis in the record.3 In response to the State’s argument that appellant had waived any

challenge to the restitution requirement by failing to object, the court of appeals relied upon Mayer4

and Idowu5 for the proposition that due process requires that the amount of restitution be supported

by a factual basis within the record.6 The court of appeals deleted the restitution requirement from

the conditions of probation and affirmed the judgments as modified.7

                                     C. Discretionary Review

       The State filed a petition for discretionary review, arguing that appellant had forfeited her



       3
          Gutierrez-Rodriguez v. State, 405 S.W.3d 936, 943 (Tex. App.–Amarillo 2013) (holding
that the “evidence at trial proved Appellant only pawned the GPS device and iPod knowing they
were stolen” and “did not establish that Appellant was guilty of either burglary” and “[b]oth items
were returned to their owners”) (emphasis in original).
       4
           Mayer v. State, 309 S.W.3d 552 (Tex. Crim. App. 2010).
       5
           Idowu v. State, 73 S.W.3d 918 (Tex. Crim. App. 2002).
       6
           Gutierrez-Rodriguez, 405 S.W.3d at 943 n.3.
       7
           Id. at 943.
                                                                     GUTIERREZ-RODRIGUEZ- 4

claim by failing to object at trial. The State also argued that, if appellant had not forfeited her claim,

the proper remedy would be to set aside the grant of community supervision, including the restitution

requirement, and remand for a new punishment hearing. We granted review to consider both issues.8

                                            II. ANALYSIS

        Ordinarily, to preserve an issue for appellate review, an appellant must have first raised the

issue in the trial court.9 However, it is also ordinarily true that a claim regarding sufficiency of the

evidence need not be preserved for review at the trial level.10 But, “imposition of a sentence is

profoundly different from the granting of community supervision.”11 Concepts of error-preservation

that apply in non-probation cases do not necessarily carry over to probation cases because probation

involves a kind of contractual relationship that does not exist in non-probation cases.

        In Speth v. State, we held that, when probation is granted, the trial court extends clemency

to the defendant and creates a sort of contractual relationship.12 Conditions of probation that are not

objected to are affirmatively accepted as terms of the contract,13 unless the condition is one that the

criminal justice system finds to be intolerable and is therefore not a contractual option available to


        8
          (1) Must the defendant object at trial to complain on appeal about a condition of
community supervision requiring payment of restitution for an offense with which the defendant was
not charged?
         (2) What is the appropriate remedy for an unauthorized restitution order as a condition of
community supervision when the trial court assesses punishment?
        9
             TEX . RULE APP. P. 33.1(a); Burt v. State, 396 S.W.3d 574, 577 (Tex. Crim. App. 2013).
        10
          Moore v. State, 371 S.W.3d 221, 225 (Tex. Crim. App. 2012); Moff v. State, 131 S.W.3d
485, 489 (Tex. Crim. App. 2004).
        11
             Speth, 6 S.W.3d at 532.
        12
             Id. at 533.
        13
             Id. at 534.
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the parties.14 Requiring restitution for stolen items that were not included in the charging instrument,

but that belonged to the complaining witnesses and were stolen during the same transaction as the

charged items, is not the sort of condition that the criminal justice system finds intolerable or

unconscionable. This is true even if appellant’s connection to the theft of these items was not

specifically established, as long as she had the opportunity to object and challenge such a connection.

A trial objection would have given the trial court the opportunity to reconsider the condition of

probation or to reconsider the appropriateness of the probation contract without the objected-to

condition.15 The record in the present case establishes that the restitution requirement was discussed

during the punishment stage hearing, so appellant had an opportunity to object to it.16 Consequently,

in accordance with Speth, she forfeited her complaint.

        The cases cited by the court of appeals do not resolve the issue before us. The defendant in

Mayer did not receive probation, so there was no “contract.”17 Restitution was a condition of the

defendant’s probation in Idowu, but we declined to decide whether a sufficiency claim could be

forfeited because there was a factual basis for the amount of restitution ordered.18

        We need not determine whether appellant’s complaint in the present case relates to the

“appropriateness” of restitution or to its “factual basis” because, by failing to object to the restitution,




        14
             Gutierrez v. State, 380 S.W.3d 167, 175-76 (Tex. Crim. App. 2012).
        15
             See Speth, 6 S.W.3d at 534-35.
        16
          See id. at 534 n.9 (rule that a defendant accepts the conditions of probation to which he
does not object assumes that the defendant knew what the conditions were in time to object at trial).
        17
             309 S.W.3d at 553 (sentenced to thirty years’ incarceration).
        18
             73 S.W.3d at 922.
                                                                  GUTIERREZ-RODRIGUEZ- 6

appellant “affirmatively accepted [the] terms of the contract.”19 Regardless of how appellant’s

complaint is characterized, she bound herself to the terms of the probation contract by accepting the

benefits of the contract without objection.20

       Because we hold that appellant forfeited her claim regarding the restitution requirement, we

do not reach the State’s second ground for review. The judgment of the court of appeals is reversed,

and the judgment of the trial court is affirmed.

Delivered: October 1, 2014
Publish




       19
            See Speth, 6 S.W.3d at 534.
       20
           The State contends that the claim here is one of “authorization” rather than “sufficiency.”
These concepts are not necessarily helpful, though, because the two concepts can overlap: in the
usual sufficiency claim, the “sufficiency” of the evidence is measured against allegations that are
“authorized” by the indictment. See Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997);
Curry v. State, 30 S.W.3d 394, 404 (Tex. Crim. App. 2000) (a sufficiency review must be based
upon the statutory elements of the offense “as modified by the charging instrument.”). We have
applied Malik’s general framework to at least some punishment issues. Roberson v. State, 420
S.W.3d 832, 841 (Tex. Crim. App. 2013). Given our disposition on the basis of Speth, we need not
decide whether Malik’s principles would require incorporating the charging instrument’s allegations
into a sufficiency review of the factual basis for restitution. Moreover, appellant is estopped from
complaining because she accepted the benefit of the contract: probation.
