AFFIRM in part, VACATE in part, and REMAND; Opinion Filed October 7, 2013.




                                         S   In The
                                Court of Appeals
                         Fifth District of Texas at Dallas
                            ────────────────────────────
                                   No. 05-09-00116-CR
                            ────────────────────────────

                              LEMUEL CARL BURT, Appellant
                                                V.

                              THE STATE OF TEXAS, Appellee

   ═════════════════════════════════════════════════════════════
                On Appeal from the Criminal District Court No. 7
                             Dallas County, Texas
                     Trial Court Cause No. F07-01438-Y
   ═════════════════════════════════════════════════════════════

                               OPINION ON REMAND

                        Before Justices Moseley, Lang-Miers, and Lewis
                                Opinion By Justice Lang-Miers

       A jury convicted Lemuel Carl Burt of misapplication of fiduciary property and assessed

his punishment at 14 years’ incarceration and a $10,000 fine. The written judgment included an

order to pay restitution. Appellant appealed the conviction and in five issues argued that the

evidence was insufficient to support the conviction, the trial court erred by denying his motion to

suppress evidence, and the restitution order was invalid because it was not orally pronounced in

his presence and because it included amounts to victims not named in the indictment. For the

following reasons, we vacate the restitution order and remand the case to the trial court for

reassessment of restitution. We otherwise affirm the trial court’s judgment.


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                                          BACKGROUND

       We provided a detailed recitation of the facts in this case in our opinion on original

submission and do not recount them here. Burt v. State, No. 05-09-00116-CR, 2011 WL

3211249, at *1–3 (Tex. App.—Dallas July 29, 2011) (not designated for publication), rev’d in

part, 396 S.W.3d 574 (Tex. Crim. App. 2013). A jury convicted appellant of operating a Ponzi

scheme involving real estate and defrauding investors of hundreds of thousands of dollars. At the

end of closing arguments in the punishment phase of trial, and after the jury had been retired to

consider punishment, the trial court, in appellant’s presence, asked the State to prepare a

proposed order of restitution with a memorandum to support the amount. The court stated, “You

can rely on everything that was introduced in the case. We don’t need to have a hearing on it as

far as an evidentiary hearing, but if y’all can’t come up with an agreed figure, then we will have

to have a hearing on it at some point in the future, okay? And the sooner, the better.”

       The jury returned its punishment verdict, and the court accepted the verdict, dismissed

the jury, and orally pronounced appellant guilty and assessed his punishment in accordance with

the jury’s verdict. The court reminded the parties that “[t]he sooner we can get that restitution

matter taken care of, the better.” The court’s docket sheet contains an entry showing that the next

day the trial court ordered restitution in the amount of $591,785. The court also signed the

judgment that same day and attached documents to the judgment supporting the restitution

amount. The record did not reflect that the trial court held a hearing on the restitution amount,

that the parties agreed to the restitution amount, or that the restitution order was orally

pronounced in appellant’s or the State’s presence.

       On original submission, we concluded that the evidence supported the conviction and that

the trial court did not err by denying appellant’s motion to suppress. As a result, we resolved

appellant’s first three issues against him. Burt, 2011 WL 3211249, at *4–9. With regard to issues



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four and five concerning the restitution order, we concluded that appellant had not preserved

those issues for review and declined to consider the merits of those issues. Id. at *9–10.

       Appellant filed a petition for discretionary review challenging our decision on issues four

and five regarding the restitution order. The Texas Court of Criminal Appeals granted the

petition and concluded that appellant did not have an opportunity to object to the inclusion of

restitution in the written judgment and, as a result, did not forfeit his right to appeal the

restitution order. Burt, 396 S.W.3d at 578–79. The court reversed our judgment and remanded

the restitution matter to us for consideration of the merits of appellant’s issues. Id. at 579. The

court’s judgment, however, did not limit the reversal of our judgment to the restitution matter,

and, instead, reversed our judgment in its entirety. Accordingly, we adopt our analysis and

conclusions on original submission on issues one, two, and three regarding the sufficiency of the

evidence and the motion to suppress, and we affirm the trial court’s judgment on those grounds.

See Burt, 2011 WL 3211249, at *4–10.

       On remand, the parties filed supplemental briefs on issues four and five concerning the

restitution order. For the following reasons, we vacate the restitution order in the trial court’s

judgment and remand the case for reassessment of restitution.

                                            DISCUSSION

       In issue four, appellant argues that the judgment should be reformed to strike the

restitution order because the trial court did not hold a hearing on restitution and did not impose

restitution in open court. He argues that the oral pronouncement of sentence and the written

judgment differ on the issue of restitution and, as a result, the oral pronouncement controls.

Appellant cites decisions from the Texas Court of Criminal Appeals and from our sister courts of

appeals to support his argument that the restitution order must be stricken from the judgment

because the trial court did not orally pronounce restitution.



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        The State argues that the trial court orally pronounced that restitution would be required,

but did not orally pronounce the amount of restitution. It argues that “[t]he grand total amount of

restitution due in this case is not ‘punishment,’ . . . is not part of the sentence[,] . . . [and] a trial

court is not obligated to ‘pronounce’ the total amount spontaneously upon receiving the jury’s

punishment verdict[.]” For support, the State cites our unpublished opinion in Manning v. State,

No. 05-06-00422-CR, 2007 WL 2069623, at *1 (Tex. App.—Dallas July 20, 2007, no pet.) (not

designated for publication), in which we said that “restitution is not part of the sentence” and

“the trial court had no duty to orally pronounce restitution.”

        Even if we assume that restitution is part of the sentence and must be orally pronounced,

we nevertheless would not vacate the restitution order and reform the judgment. Instead, we

conclude that this case is appropriate for remand to the trial court for reassessment of restitution.

See Davis v. State, 349 S.W.3d 535, 540 (Tex. Crim. App. 2011).

        Appellant argues that remand is not appropriate and cites cases in which our sister courts

of appeals deleted restitution orders and modified the judgments in those cases. But those cases

are distinguishable because the trial courts did not have discussions on the record about

restitution. For example, in Scott v. State, No. 07-12-00176-CR, 2012 WL 5060030, at *1 (Tex.

App.—Amarillo Oct. 7, 2012, no pet.) (mem. op.), there was no mention of restitution during

sentencing, but the written judgment contained an order to pay restitution. In that case, the State

agreed restitution was improper and asked the court to reform the judgment to delete the order of

restitution. Id. See also Berkley v. State, No. 07-11-0264-CR, 2012 WL 2873890, at *1 (Tex.

App.—Amarillo July 13, 2012, pet. dism’d) (mem. op., not designated for publication) (trial

court pronounced sentence “without any mention of restitution” and State agreed written

judgment containing restitution order should be modified to delete restitution). Similarly, in

Smith v. State, No. 12-11-00389-CR, 2012 WL 4107468, at *1 (Tex. App.—Tyler Sept. 19,



                                                  B4B
2012, no pet.) (mem. op., not designated for publication), the court of appeals sua sponte deleted

the restitution order in the written judgment because there was “no mention of restitution” during

the sentencing hearing and “the trial court did not orally order that restitution be paid[.]” And in

Henriquez v. State, Nos. 12-11-00143-CR & 12-11-00146-CR, 2012 WL 1883753, at *4 (Tex.

App.—Tyler May 23, 2012, no pet.) (mem. op., not designated for publication), the court of

appeals deleted an order of restitution in the trial court’s written judgment because the trial court

specifically stated during the sentencing hearing that it would not order restitution.

       In this case, however, it is undisputed that appellant and the State knew restitution was to

be a part of the written judgment. In appellant’s presence, the trial court instructed the State to

prepare a memorandum regarding the amount of restitution it believed was proven. The court

told the parties that a hearing on restitution would be necessary only if the State and appellant

could not agree on an amount. Unlike the cases upon which appellant relies, restitution was

expressly mentioned during appellant’s sentencing hearing. When we find error that affects only

the punishment phase of trial, we “may remand the case to the trial court for the proper

assessment of punishment.” Davis, 349 S.W.3d at 539.

       In issue five, appellant alternatively argues that the restitution issue must be remanded for

a hearing because the amount includes losses to victims that were not named in the indictment.

Because we are remanding this case to the trial court for reassessment of restitution, we conclude

that we do not need to decide this issue and that it is more appropriately decided by the trial court

upon hearing.




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                                        CONCLUSION

       We vacate the restitution order in the trial court’s judgment and remand the case to the

trial court for reassessment of restitution. In all other respects, we affirm the trial court’s

judgment.




                                                    /Elizabeth Lang-Miers/
                                                   ELIZABETH LANG-MIERS
                                                   JUSTICE

Do Not Publish
TEX. R. APP. P. 47.2(b)

090116F.U05




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                                        S
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                        JUDGMENT

LEMUEL CARL BURT, Appellant                         On Appeal from the Criminal District Court
                                                    No. 7, Dallas County, Texas
No. 05-09-00116-CR         V.                       Trial Court Cause No. F07-01438-Y.
                                                    Opinion on Remand delivered by Justice
THE STATE OF TEXAS, Appellee                        Lang-Miers, Justices Moseley and Lewis
                                                    participating.

       Based on the Court’s opinion of this date, we VACATE the restitution order in the
judgment of the trial court and REMAND the cause for reassessment of restitution. In all other
respects, we AFFIRM the judgment of the trial court.


Judgment entered this 7th day of October, 2013.




                                                    /Elizabeth Lang-Miers/
                                                    ELIZABETH LANG-MIERS
                                                    JUSTICE




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