      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                        NO. 03-07-00181-CR



                                 Richard Eugene Pigg, Appellant

                                                   v.

                                   The State of Texas, Appellee


       FROM THE DISTRICT COURT OF BELL COUNTY, 27TH JUDICIAL DISTRICT
             NO. 60182, HONORABLE JOE CARROLL, JUDGE PRESIDING



                              MEMORANDUM OPINION


                Toward the end of 2006, the appellant, Richard Eugene Pigg, was indicted for the

crime of engaging in organized criminal activity, specifically insurance fraud. See Tex. Penal Code

Ann. §§ 35.02(a), (b) (specifying elements of insurance fraud), 71.02(a) (10) (specifying that person

is guilty of organized criminal activity if he “commits or conspires to commit” insurance fraud “with

the intent to establish, maintain, or participate in a combination or in the profits of a combination or

as a member of a criminal street gang”) (West Supp. 2006). Although the charged offense is

normally a third-degree felony, see id. §§ 71.02 (b) (specifying that offense level for engaging in

organized criminal activity is one category higher than underlying offense), 35.02(c) (stating that

insurance fraud is state jail felony if value of claim is between $1,500 and $20,000)

(West Supp. 2006), the indictment also contained an enhancement to the charged offense. The

enhancement provided that Pigg had previously been convicted of a prior felony offense, which
elevated the overall offense level to a second-degree felony. See id. § 12.42(a)(3) (West Supp. 2006)

(stating that if it is shown that defendant in trial for third-degree felony has been previously

convicted of felony offense, offense level in current trial is elevated to second-degree felony).

                Without entering a plea agreement, Pigg signed a judicial confession in

February 2007, admitting that he was guilty of the offense alleged in the indictment, engaged in

organized criminal activity while committing insurance fraud, and was a repeat felony offender. He

also pleaded guilty to the offense and enhancement. In addition, he executed a jury waiver and

agreement to stipulate upon a plea of guilty, which stated that he agreed to allow the State to

introduce testimony, affidavits, and other documentary evidence.

                The district court concluded that the evidence was sufficient to convict Pigg. After

hearing argument from both parties during the punishment phase of the trial, the district court

sentenced Pigg to six years’ imprisonment and ordered him to pay $10,845.18 in restitution. See

Tex. Code Crim. Proc. Ann. art. 37.07, § 3(d) (West 2006) (specifying that after hearing evidence

relevant to defendant’s punishment, trial court must announce defendant’s punishment). Pigg now

appeals the judgment of the district court.


                                            DISCUSSION

                In one issue on appeal, Pigg argues that the district court erred by ordering him to pay

$10,845.18 in restitution. He argues that the district court’s restitution order violated his federal and

state due-process rights because it deprived him of his property even though there was legally and

factually insufficient evidence to support the amount of restitution ordered. See U.S. Const. amend.

IV; Tex. Const. art. I, § 19. In light of the preceding, he asks this Court to remand the case at issue

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to the district court to conduct an evidentiary hearing and to determine the proper amount of

restitution, if any, that he should be required to pay.

                We will not reverse a trial court’s restitution order unless the court abused its

discretion when issuing its order. Cartwright v. State, 605 S.W.2d 287, 289 (Tex. Crim. App. 1980).

A trial court abuses its discretion if its decision lies outside the zone of reasonable disagreement.

Casey v. State, 215 S.W.3d 870, 879 (Tex. Crim. App. 2007). Because of the due-process

considerations inherent in ordering an individual to pay restitution, the amount of the restitution

ordered must be “just.” See Campbell v. State, 5 S.W.3d 693, 696 (Tex. Crim. App. 1999). In other

words, the amount ordered must have a factual basis. Id.; Cartwright, 605 S.W.2d at 289.

                Although Pigg argues that the evidence is insufficient, we conclude that there was a

factual basis to support the district court’s restitution order. Before the district court determined that

Pigg was guilty of insurance fraud, he signed a judicial confession admitting that he defrauded

insurance companies for an amount between $1,500 and $20,000. Further, the amount of restitution

complained of was specifically listed in a report prepared at the request of the district court. Prior

to assessing punishment, the district court requested that a presentence-investigation report be

prepared. See Tex. Code Crim. Proc. Ann. art. 37.07, § 3(d) (authorizing court to request, prior to

punishment determination, preparation of presentence-investigation report). This type of report

contains, among other things, a description of the offense charged, “the amount of restitution

necessary to adequately compensate a victim of the offense,” and the defendant’s criminal and social

history. Id. art. 42.12, § 9 (West 2006); Tex. Penal Code Ann. § 35.02(e) (West Supp 2006)




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(requiring trial court to order defendant convicted of insurance fraud to pay restitution

to affected insurer).

                Although the report was not formally admitted into evidence as an exhibit, no

provision in the code of criminal procedure requires that this type of report be formally admitted

before a court may utilize the report for the purposes of assessing punishment, Mayfield v. State,

757 S.W.2d 871, 875 (Tex. App.—Houston [1st Dist.] 1988, pet. ref’d), and the relevant statutes

obviously contemplate “that the court will consider the presentence report” for the purposes of

assessing punishment, Busby v. State, 951 S.W.2d 928, 931 (Tex. App.—Austin 1997), aff’d,

984 S.W.2d 627 (Tex. Crim. App. 1998)); see Tex. Code Crim. Proc. Ann. arts. 37.07, § 3(d), 42.12,

§ 9. Consequently, the district court could consider the contents of the report regardless of whether

the report was formally admitted into evidence. Busby, 951 S.W.2d at 931.

                The report contains various sections, including one entitled “Victim Restitution

Summary.” The summary specifies that Pigg and two other individuals engaged in organized

criminal activity and “conspired to file a fraudulent theft claim on a 2000 Harley Davidson

motorcycle.” The report further specifies that as a result of the fraud, Farmers Insurance Group and

National Insurance Crime Bureau were entitled to restitution in the amounts of $5,774.71 and

$5,070.47, respectively. The total amount of restitution listed was $10,845.18. This report along

with Pigg’s judicial confession constituted a sufficient factual basis for the restitution award. See

Davis v. State, 757 S.W.2d 386, 389 (Tex. App.—Dallas 1988, no pet.) (holding that mother’s

testimony that she incurred $3,373.10 in funeral expenses constituted sufficient basis for restitution

order); Harrison v. State, 713 S.W.2d 760, 764 (Tex. App.— Houston [14th Dist.] 1986, pet. ref’d)



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(holding that list of expenses in presentence-investigation report, which was not objected to,

provided factual basis to support restitution order); Buehler v. State, 709 S.W.2d 49, 52-53

(Tex. App.—Houston [1st Dist.] 1986, pet. ref’d) (concluding that voucher detailing extradition

expenses, which was not objected to, provided sufficient basis to support trial court’s

restitution order).

                Moreover, we also note that if Pigg disagreed with any portion of the report, it was

his obligation to object. See Mayfield v. State, 757 S.W.2d 871, 875 (Tex. App.—Houston

[1st Dist.] 1988, pet. ref’d); see also Garcia v. State, 930 S.W.2d 621, 623-24 (Tex. App.—Tyler

1996, no pet.) (noting that defendant bears burden of proving that information in presentence-

investigation report was inaccurate). After the report was prepared, the district court ascertained that

both parties had been given a copy of the report; however, Pigg failed to either object to the district

court’s decision to consider the report or introduce evidence disputing the accuracy of the report.

See Tex. Code Crim. Proc. art. 42.12, § 9(e) (providing that court must allow defendant to comment

on presentence-investigation report and may allow defendant to introduce evidence showing report

is inaccurate). Furthermore, although the restitution portion of the report may have been composed

of hearsay evidence, Pigg’s failure to object on this ground waived any right to complain of this fact

on appeal. See Tex. R. App. P. 33.1 (specifying requirements for preserving error on appeal); Briggs

v. State, 789 S.W.2d 918, 924 (Tex. Crim. App. 1990) (noting that even constitutional errors can be

waived by failing to object); see also Tex. R. Evid. 802 (“Inadmissible hearsay admitted without

objection shall not be denied probative value merely because it is hearsay.”).




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               For these reasons, we conclude that the district court’s restitution order did not violate

Pigg’s due-process rights and further conclude that the district court did not abuse its discretion by

ordering Pigg to pay $10,845.18 in restitution. Accordingly, we overrule Pigg’s issue on appeal and

affirm the judgment of the district court.




                                               David Puryear, Justice

Before Chief Justice Law, Justices Puryear and Henson

Affirmed

Filed: August 31, 2007

Do Not Publish




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