                                 NOS. 12-14-00161-CR
                                      12-14-00162-CR

                          IN THE COURT OF APPEALS

               TWELFTH COURT OF APPEALS DISTRICT

                                     TYLER, TEXAS

JAMES CAREY PROSPERIE,                           §      APPEALS FROM THE 241ST
APPELLANT

V.                                               §      JUDICIAL DISTRICT COURT

THE STATE OF TEXAS,
APPELLEE                                         §      SMITH COUNTY, TEXAS

                                  MEMORANDUM OPINION
       James Carey Prosperie appeals his convictions for sexual assault of a child and indecency
with a child, for which he was sentenced to imprisonment for consecutive terms of sixteen years
each. In two issues, Appellant argues that the trial court erred by failing to conduct a restitution
hearing, by failing to specify its reasons for not ordering restitution, and by denying his motion
for new trial on punishment. We affirm.


                                          BACKGROUND
       Appellant was charged by indictment with sexual assault of a child and three counts of
indecency with a child. Pursuant to plea negotiations, Appellant entered an open plea of “guilty”
to sexual assault of a child and one count of indecency with a child, and admitted his guilt of the
other two offenses as permitted under Article 12.45 of the penal code. The matter proceeded to a
bench trial on punishment.
       After reviewing the presentence investigation report and hearing arguments of the parties,
the trial court assessed Appellant’s punishment in each case at imprisonment for sixteen years
and ordered that the sentences run consecutively. Appellant subsequently filed a motion for new
trial and new trial on punishment, asking the trial court to “restructure” his punishment, reducing
his prison sentence to two years and ordering $50,000.00 in restitution. The trial court denied
the motion, and this appeal followed.


                                          MOTION FOR NEW TRIAL1
       In his first issue, Appellant argues that the trial court erred by failing to conduct a
restitution hearing on his motion for new trial, and by failing to specify its reasons for not
ordering restitution after Appellant offered in his motion for new trial to pay a large amount.
       In his second issue, Appellant argues that the trial court erred by refusing to “restructure”
his punishment because of his age and poor health as requested in his motion for new trial.
Restitution Hearing
       Under Article 42.037 of the code of criminal procedure, “the court that sentences a
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) (West Supp. 2014). Due process
requires three restrictions on the trial court’s restitution order: (1) the amount must be just and
supported by a factual basis in the record, (2) the restitution 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 of the offense with which the defendant is charged. Miller v. State, 343 S.W.3d
499, 502 (Tex. App.—Waco 2011, pet. ref’d).
       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).
       At trial, the parties never mentioned restitution. During sentencing, the trial court ordered
that restitution be paid but did not specify an amount. The judgments do not reflect any
restitution. Appellant cites Article 42.037 in support of his argument that the trial court erred by
failing to conduct a restitution hearing on his motion for new trial. But that article makes no
mention of a mandatory restitution hearing. See TEX. CODE CRIM. PROC. ANN. art. 42.037(a).
       Appellant also cites Article 56.02, subsections (a)(5) and (6) of the code of criminal
procedure. However, subsection (a)(5) relates only to a victim’s right to provide information to a
probation department conducting a presentence investigation. TEX. CODE CRIM. PROC. ANN. art.
56.02(a)(5) (West Supp. 2014). And subsection (a)(6) relates only to a victim’s right to receive

       1
           The grounds raised in Appellant’s motion for new trial pertain to punishment only.


                                                         2
information regarding state compensation for crime victims, not proposed restitution from an
offender. Id. art. 56.02(a)(6). Therefore, these provisions do not support Appellant’s argument.
        Because Appellant has shown no authority supporting his argument that the trial court
was required to conduct a restitution hearing on his motion for new trial, we conclude that the
trial court did not err by failing to do so. Accordingly, we overrule the portion of Appellant’s
first issue regarding the trial court’s failure to conduct a restitution hearing.
Reasons for Not Ordering Restitution
        Under Article 42.037, “[i]f 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). Thus, the law so favors
crime victims’ compensation that the trial court must justify its decision not to order restitution
to a crime victim. Burt v. State, 445 S.W.3d 752, 756 (Tex. Crim. App. 2014). The record
reflects that the trial court ordered an unspecified amount of restitution at the time of sentencing.
We cannot discern from the record why no restitution is reflected in the judgments.
        However, assuming without deciding that the trial court erred by failing to state on the
record its reasons for the lack of restitution in the judgments, the error is harmless. On appellate
review, a nonconstitutional error must be disregarded unless it affects the defendant’s substantial
rights. TEX. R. APP. P. 44.2(b); Barshaw v. State, 342 S.W.3d 91, 93 (Tex. Crim. App. 2011). It
is the appellate court’s duty to assess such harm after examining the record as a whole. Schutz v.
State, 63 S.W.3d 442, 444 (Tex. Crim. App. 2001).
        Appellant does not explain how his substantial rights were affected by the trial court’s
failure to state its reasons for not ordering restitution. And after reviewing the record as a whole,
we have fair assurance that Appellant’s substantial rights were not affected by the trial court’s
failure to state its reasons for not ordering restitution. See Schutz, 63 S.W.3d at 444. Therefore,
we disregard any such failure. See TEX. R. APP. P. 44.2(b); Barshaw, 342 S.W.3d at 93.
Accordingly, we overrule the remainder of Appellant’s first issue.
Denial of Motion for New Trial
        An appellate court reviews a trial court’s denial of a motion for new trial for an abuse of
discretion, reversing only if the trial judge’s opinion was clearly erroneous and arbitrary. Riley
v. State, 378 S.W.3d 453, 457 (Tex. Crim. App. 2012); Holden v. State, 201 S.W.3d 761, 763
(Tex. Crim. App. 2006). A trial court abuses its discretion if no reasonable view of the record



                                                   3
could support its ruling. Riley, 378 S.W.3d at 457. This requires the appellate court to view the
evidence in the light most favorable to the trial court’s ruling. Id. The appellate court must not
substitute its own judgment for that of the trial court and must uphold the trial court’s ruling if it
is within the zone of reasonable disagreement. Id.
       In his motion for new trial, Appellant argued for the first time that the trial court should
order him to pay $50,000.00 in restitution, assess a prison sentence of two years in one case, and
place him on community supervision for ten years in the other. Appellant contended that there
are several reasons the trial court should so “restructure” his punishment. First, Appellant argued
that the court should order $50,000.00 in restitution to be placed in a trust fund for the victim’s
college expenses. He did not explain how such restitution was related to the offense or how he
arrived at the particular amount of restitution. He simply opined that, in this way, “the Court
could assure that the young victim obtains a college education at Prosperie’s expense, and
graduates debt free.”
       Second, Appellant argued that his sentence should be reduced because of his advanced
age and because his health and cognitive abilities are poor and declining. He contended that the
taxpayers should not be forced to pay the costs of his medical treatment. Appellant did not cite
any authority stating that a defendant in poor health should not be imprisoned.
       Finally, Appellant asked the trial court to reduce his “effective life sentence” because of
society’s interest in reintegrating offenders. In support of his request, he cited Mempa v. Rhay,
389 U.S. 128, 88 S. Ct. 254, 19 L. Ed. 2d 336 (1967); Morissey v. Brewer, 408 U.S. 471, 92 S.
Ct. 2593, 33 L. Ed. 2d 484 (1972); and Gagnon v. Scarpelli, 411 U.S. 778, 93 S. Ct. 1756, 36 L.
Ed. 2d 656 (1973). He contended that under those cases and the due process clause, the trial
court was required to consider society’s interest in reintegration when assessing his punishment.
However, those cases addressed due process rights in the context of parole and probation
revocations, not sentencing. And even assuming that the trial court was required to consider
such an interest in assessing Appellant’s punishment, Appellant did not show that it did not.
       Appellant raises the same arguments on appeal. None of his arguments constitutes
mandatory grounds for a new trial on punishment. See TEX. R. APP. P. 21.3. We conclude that
the trial court did not abuse its discretion by denying Appellant’s motion for new trial on
punishment. Accordingly, we overrule Appellant’s second issue.




                                                  4
                                                  DISPOSITION
         Having overruled Appellant’s first and second issues, we affirm the trial court’s
judgment.

                                                                JAMES T. WORTHEN
                                                                   Chief Justice

Opinion delivered June 10, 2015.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.




                                             (DO NOT PUBLISH)




                                                          5
                                   COURT OF APPEALS

      TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

                                           JUDGMENT

                                             JUNE 10, 2015


                                         NO. 12-14-00161-CR


                                   JAMES CAREY PROSPERIE,
                                           Appellant
                                              V.
                                     THE STATE OF TEXAS,
                                           Appellee


                                 Appeal from the 241st District Court
                         of Smith County, Texas (Tr.Ct.No. 241-1874-13)

                        THIS CAUSE came to be heard on the appellate record and briefs filed
herein, and the same being considered, it is the opinion of this court that there was no error in the
judgment.
                        It is therefore ORDERED, ADJUDGED and DECREED that the judgment
of the court below be in all things affirmed, and that this decision be certified to the court
below for observance.
                    James T. Worthen, Chief Justice.
                    Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
                                   COURT OF APPEALS

      TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

                                           JUDGMENT

                                             JUNE 10, 2015


                                         NO. 12-14-00162-CR


                                   JAMES CAREY PROSPERIE,
                                           Appellant
                                              V.
                                     THE STATE OF TEXAS,
                                           Appellee


                                 Appeal from the 241st District Court
                         of Smith County, Texas (Tr.Ct.No. 241-1875-13)

                        THIS CAUSE came to be heard on the appellate record and briefs filed
herein, and the same being considered, it is the opinion of this court that there was no error in the
judgment.
                        It is therefore ORDERED, ADJUDGED and DECREED that the judgment
of the court below be in all things affirmed, and that this decision be certified to the court
below for observance.
                    James T. Worthen, Chief Justice.
                    Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
