                                                                           ACCEPTED
                                                                      03-15-00043-CR
                                                                             4863353
                                                            THIRD COURT OF APPEALS
                                                                       AUSTIN, TEXAS
                                                                 4/13/2015 1:37:20 PM
                                                                    JEFFREY D. KYLE
                                                                               CLERK
                    No. 03-15-00043-CR

                 IN THE COURT OF APPEALS             FILED IN
                                              3rd COURT OF APPEALS
            FOR THE THIRD JUDICIAL DISTRICT OF AUSTIN, TEXAS
                  TEXAS AT AUSTIN, TEXAS      4/13/2015 1:37:20 PM
                                                 JEFFREY D. KYLE
                                                      Clerk
                          ********

              KODY BROXTON
                            VS.

         THE STATE OF TEXAS
                          ********

         ON APPEAL FROM THE 264th DISTRICT COURT
                 OF BELL COUNTY, TEXAS
                     Cause No. 71838

                           ******
  STATE’S BRIEF and MOTION TO DISMISS
                           ******


                         HENRY GARZA
                         DISTRICT ATTORNEY

                         BOB D. ODOM
                         ASSISTANT DISTRICT ATTORNEY
                         P.O. Box 540
                         Belton, Tx 76513
                         (254) 933-5215
                         FAX (254) 933-5704
                         DistrictAttorney@co.bell.tx.us
                         SBA No. 15200000

Oral Argument Not Requested

                             1
                  TABLE OF CONTENTS

ITEM                                                    PAGE

Index of Authorities ………………………………………………………………..           3

Statement Regarding Oral Argument ………………………………………         5

Statement of the Case ……………………………………………………………..           5

Motion to Dismiss Appeal ……………………………………………………….           6

       Facts …………………………………………………………………………….               6

       Argument …………………………………………………………………….               7

Statement of Facts …………………………………………………………………              8

Summary of State’s Argument ………………………………………………..         10

Argument and Authorities ……………………………………………………..          11

       Issue on Appeal ……………………………………………………………           11
                  TRIAL COURT ABUSE DISCRETION IN
                  ORDERING PAYMENT OF RESTITUTION
                  NOT REQUESTED BY VICTIM OR STATE?

           Standard of Review …………………………………………….         11

           Application and Analysis …………………………………….      11

Prayer ………………………………………………………………………………….                  20

Certificate of Compliance with Rule 9 …………………………………….    20

Certificate of Service ……………………………………………………………..         21




                              2
                   INDEX OF AUTHORITIES

CASES                                                                PAGE

Cartwright v. State, 605 S.W.2d 287 ………………………………………… 11-12
     (Tx. Cr. App. 1980)

Dears v. State, 154 S.W.3d 610 …………………………………………………                     7
      (Tx. Cr. App. 2005)

Hanna v. State, 426 S.W.3d 87 ………………………………………… 13-14, 16, 18
     (Tx. Cr. App. 2014)

James v. Commission for Lawyer Discipline, 310 S.W. …………………. 17-18
     3d 598 (Tx. App. Dallas 5th Dist. 2010 no writ)

In the Matter of M.H., 662 S.W. 2d 764 ………………………………………. 15-16
       (Tx. App. Corpus Christi 13th Dist. 1983 no writ.)

Montgomery v. State, 810 S.W.2d 372 ……………………………………….                  11
     (Tx. Cr. App. 1991)

Shankle v. State, 119 S.W. 3d 808 ………………………………………………                  7-8
     (Tx. Cr. App. 2003)

Velez v. State, No. 04-11-00563-CR, 2012 Tex. App. ….………………..          7
      LEXIS 6486 (Tx.App. San Antonio 4th District 2012 no. pet.),
      not designated for publication.

OTHER

Texas Code of Criminal Procedure

      Article 1.26 ………………………………………………………………………                        13

      Article 42.037 …………………………………………………………… 14, 16-18

      Article 42.037(a) …………………………………………………………….. 12-13


                                    3
Texas Family Code

      Section 54.04(d)(1)(D) …………………………………………………….       16

Texas Rules of Appellate Procedure

      Rule 25.2 …………………………………………………………………………             7

      Rule 25.2(a)(2) ………………………………………………………………..         8

Texas Rules of Civil Procedure…………………………………………………….      15

Texas Rules of Disciplinary Procedure …………………………………………   17




                                     4
STATEMENT REGARDING ORAL ARGUMENT
      The State does not request oral argument.

STATEMENT OF THE CASE

      The Appellant, Kody Lee Broxton, was charged by indictment with

two counts of theft of metal casings of a value of less than $20,000.00

from Kevin Canfield, the owner. (CR-4). He entered a plea of guilty.

(RR2-6).

      Although the court and the Appellant stated in court that there

was no plea bargain with the State (RR2-7) and the trial court later so

certified (CR-27), the Written Plea Agreement signed by the Appellant

and approved by his counsel, the State and the court indicated that the

State agreed to recommend that the sentence in this case would run

concurrent with the sentences in three other cases (CR-19). The trial

court noted that the State and defense has “struck a deal” that all of the

sentences would run concurrently and not be stacked. (RR3-56). The

court followed that agreement. (RR3-58).

      The trial court found the Appellant guilty and assessed

punishment at 2 years in State Jail and ordered payment of restitution in

the amount of $30,000.00. (CR-54; RR3-56, 57).



                                    5
         The Appellant filed motions for new trial (CR-39, 46) which were

apparently overruled by operation of law. He gave timely notice of

appeal (CR-29) and the trial court certified his right to do so. (CR-27).

MOTION TO DISMISS APPEAL

FACTS

         In this case the State did not make a recommendation as to the

specific number or years to which the Appellant would be sentenced;

however, it did agree to recommend that the sentence “run concurrent”

with the sentences in three additional cases, cause numbers 73,310,

73,309, and 73,3111 (CR-19).                 This agreement was signed and

acknowledged to be true and correct by the Appellant (CR-24, 25). It

was also approved by his counsel (CR-25), and by the State (CR25), and

by the trial court. (CR-26).

         Although during the hearing the court stated that there was no

plea bargain and the Appellant agreed (RR2-7), at the time of sentencing

the trial court stated:

                 “(THE COURT): you have, it appears from looking at the
                   plea papers, struck a deal with the State through your
                   lawyer that they would all run concurrently with each
                   other as opposed to doing these individually and being
                   stacked.” (RR3-56).
1
    These three cases are now before this court in Cause Numbers 73309, 73310 and 73311.


                                             6
In keeping with the agreement the court then sentenced the Appellant

“to run concurrently”. (RR3-57). The written judgment of the trial court

also specifically provided that the sentence in this cause would run

concurrently with cause numbers 73309, 73310, and 73311. (CR-48).

      Nevertheless, in its Certificate of Defendant’s Right to Appeal the

trial court stated that this was not a plea bargain case. (CR-27).

Argument and Motion

      An appellate court must compare the certification of the right to

appeal with the record and, where the certificate is in error, act

accordingly. Dears v. State, 154 S.W. 3d 610, 615 (Tx. Cr. App. 2005).

Where the State agreed to concurrent sentences in the underlying case

and two companion cases there was a “charge bargain” that constituted

a plea bargain. Velez v. State, No. 04-11-00563-CR, 2012 Tex. App. LEXIS

6486 (Tx. App. San Antonio 4th Dist. 2012, no pet.), not designated for

publication. Charge bargaining affects punishment as it effectively caps

punishment at the maximum sentence for the charge and is an

agreement as to punishment under Rule 25.2 of the Texas Rules of

Appellate Procedure. Shankle v. State, 119 S.W.3d 808, 812-13 (Tx. Cr.

App. 2003).




                                     7
      Rule 25.2(a)(2) limits the right of the defendant of appeal in a plea

bargain case, where the agreement is followed, to matters raised by

written pretrial motions or with the permission of the trial court.

      In this case there was a written agreement that the sentence was

be served concurrently with those in the three companion cases. The

trial court expressly recognized the existence of that agreement and

followed its terms, effectively capping the sentence in the case. There

was a plea bargain and the trial court’s certificate was in error.

Accordingly this court is without jurisdiction to consider this appeal and

the State respectfully moves the court to dismiss the appeal for want of

jurisdiction. Shankle at 814.


STATEMENT OF FACTS

      The sole issue on appeal is whether or not the trial court has the

discretion to order the payment of restitution where the victim and the

State do not request it. The Appellant does not contest the amount of

restitution and the facts of the case are, therefore, not pertinent to the

issue before the court.     Thus, the State will recite only those facts

pertaining to that issue.




                                    8
      During the punishment hearing, the victim named in the

indictment, Kevin Canfield, testified that he was the human resources

manager for Delta Centrifugal company in Temple, Texas and that his

business had been victimized by a series of thefts of valuable high grade

metals. (RR3-6, 7). Canfield had apprehended the Appellant and two co-

defendants in the act of stealing the metal. (RR3-8-10).

      After testifying about the value of the lost metal, Canfield was

asked by the Appellant’s counsel about restitution and responded: “I

don’t believe we are asking the Court for restitution. We are asking

punishment and jail time.” (RR3-19).

      Robert Rose, the president of Delta Centrifugal, was asked if he

was interested in the Appellant paying the money back. He said “I don’t

know that he really has the means to pay it back. I’m more interested in

doing jail time for the theft.” (RR3-22). Later, Mr. Rose clarified his

position. “If I thought he really had the means, I would probably seek

restitution. But I don’t really believe that he has the means. I have no

basis of that but I just don’t feel like that’s a possibility”. (RR3-25).

      The Appellant, however, testified that he fully expected to pay

restitution and make everything right (RR3-31) and promised to seek a

second job in order to do it. (RR3-32).


                                       9
      During his argument on punishment, Appellant’s counsel urged

the court to determine the amount of restitution based upon the

evidence. (RR3-53).

      State’s counsel, in urging the court to reject the Appellant’s plea

for community supervision, made the statement that he should pay for

what he had done, not with restitution, but with his freedom for two

years in State Jail and noted that no one at Delta Centrifugal was asking

him to pay them back. (RR3-54, 55).

      The trial court included in its oral pronouncement of sentence

(RR3-56, 57) and its written judgment (CR-48) that the Appellant pay

restitution in the amount of $30,000.00.

SUMMARY OF STATE’S ARGUMENT

      The statements by the victim and counsel for the State do not

constitute a waiver of restitution but merely an expression of a

preference for the Appellant to serve jail time for the offense. An order

imposing restitution is within the sound discretion of the trial court and

the court may order it paid regardless of a request by the victim or the

State and such an order is not an abuse of discretion. Nothing in the

statute requires a request from the victim or acquiescence by the State



                                    10
in order to impose restitution. The Appellant does not contest either

the amount of the restitution order or the identity of the victim of the

offense.

ARGUMENT AND AUTHORITIES

First Issue on Appeal

      Did the trial court abuse its discretion in ordering the payment of

restitution to the victim even though it was not requested by the victim

or by the State?

Standard of Review

      Restitution orders are reviewed under an abuse of discretion

standard. Cartwright v. State, 605 S.W.2d 287, 289 (Tx.Cr.App. 1980). A

trial court abuses its discretion only when its decision is arbitrary,

unreasonable, or is outside the zone of reasonable disagreement.

Montgomery v. State, 810 S.W.2d 372, 391, 391 (Tx. Cr. App. 1991).

Application and Analysis

      The Appellant contends that both the victim and the State have

waived the imposition of restitution and, therefore, the trial court

abused its discretion in ordering its payment. He concludes that this is

apparently a case of first impression.



                                    11
      His basic premise is based first upon the characterization of the

victim and State’s statements as waivers. The victims quite clearly

stated that they were not asking the court to order restitution because

they doubted the Appellant’s ability to pay it and were most interested

in sending a message about thefts from their business through the

imposition of jail time. The State’s statement in argument to the court

was in keeping with these expressed concerns and, in rebuttal to the

Appellant’s plea for community supervision, indicated that the State was

more interested in jail time than in restitution. These preferences were

not waivers at all as they were based on doubts as to whether or not the

Appellant could or would ever pay restitution and upon the contention

that jail time was more important.

      However, even if the victim and the State were considered to have

waived any claims to restitution, the question remains as to whether or

not the trial court still has the discretion to order it. A decision to order

the payment of restitution is within the sound discretion of the trial

court. Cartwright at 289. Is that discretion abused merely because the

victim or the prosecutor may not seek it for whatever reason?

      Article 42.037(a), Texas Code of Criminal Procedure, provides that

the court that sentences a defendant may order the defendant to make


                                     12
restitution to any victim of the offense. The statute, by its wording,

leaves that decision to the discretion of the court.         There is no

requirement that the victim demand it or assert his or her right to it, nor

does it give the State the right to waive restitution.

      In Hanna v. State, 426 S.W.3d 87 (Tx. Cr. App. 2014), the Court of

Criminal Appeals while dealing with another issue, recently wrote

concerning the nature of restitution.          Restitution is a form of

punishment, but it also serves multiple purposes including the

restoration of the victim to the status quo and the forcing of the offender

to address and remedy the specific harm he has caused. The restitution

statute provides the trial court with great discretion in effectuating

opportunities for the rehabilitation of criminals, deterring future harm

and compensating victims efficiently. The trial judge has discretion

under Article 42.037(a) to order restitution to any victim of the offense.

Hanna at 91-92.

      In interpreting a statue the court must look first to the plain

language of the statute in order to effectuate the intent or purpose of the

legislature in enacting the statute. The Code of Criminal Procedure is to

be liberally construed to achieve the purpose of the legislature in

preventing, suppressing and punishing crime. Article 1.26, Texas Code of


                                     13
Criminal Procedure. The legislature intended restitution to adequately

compensate the victim of the offense in the course of punishing the

offender.    Society is benefitted by such punishment that includes

restitution. Hanna at 91, 92.

      The plain language of Article 42.037 states that the trial court may

order the payment of restitution to any victim of the offense. “May”

clearly indicates discretion to do so. There is nothing in the statute to

the effect that the victim must request or demand it or that the State can

waive a victim’s right to it.

      The victim clearly expressed a desire to see the Appellant sent to

State jail to send a message to others who might contemplate theft from

his business. (RR3-24). Restitution as part of the punishment is in

keeping with that objective and the intention of the legislature to

prevent, suppress and punish crime and to rehabilitate the Appellant as

well as deter future harm.

      The trial court’s order for the payment of restitution was well

within its discretion. The Appellant assured the court that he could and

would pay restitution and his counsel asked the court to determine a

restitution amount from the evidence. Although they were apparently




                                   14
hoping for community supervision, that hope does not negate their plea

that restitution be imposed.

      The Appellant does not contest the amount of restitution imposed

nor that Delta Centrifugal was the victim. The opinions of the victim

and the prosecutor that the Appellant would never be able to pay it and

that jail time was more important are not controlling as to the trial

court’s exercise of its reasonable discretion.

      The Appellant attempts to distinguish two cases from this one

because they involve different statutes allowing the imposition of

restitution; however those cases are nevertheless instructive.

      In The Matter of M.H., 662 S.W.2d 764 (Tx. App. Corpus Christi 13th

Dist. 1983 no writ), the juvenile appellant contended that the trial

court’s order for the payment of restitution was improper because there

was no specific request for restitution in the pleadings asking that she

be found a child in need of rehabilitation.       Thus, she argued, the

judgment did not conform to the pleadings as required by the Texas

Rules of Civil Procedure. The court of appeals, however, held that the

Texas Family Code provided for the order of restitution upon a finding

that the child is in need of rehabilitation and that the protection of the

public and the child requires disposition. That being the case, the


                                     15
pleadings for such a finding permitted the ordering of restitution. M.H.

at 766.

      While In the Matter of M.H. did not involve Article 42.037, but

rather Section 54.04(d)(1)(D) of the Family Code, it is nevertheless

analogous. Section 54.04(d)(1)(D) allows the juvenile court to impose

restitution upon a finding of a child in need of rehabilitation. Article

42.037 provides that the court that sentences a convicted defendant

may order restitution to any victim. That victim need not be named in

the charging instrument under 42.037. Hanna at 96. Thus, just as in

M.H., the conviction of a criminal offense carries the consequence that

restitution may be imposed at the discretion of the court. That order is

not dependent upon the pleadings.

      The Appellant also notes that M.H. focuses on the imposition of

restitution rather than what he characterizes as “the unequivocal

waiver” of restitution in this case. As noted above, he presupposes that

an expression by the victim and the State that they are more concerned

with sending a message by the imposition of jail time as opposed to

restitution he is unlikely to pay is a waiver. The State again contends

that such is not the case. The Appellant also distinguishes the case

because the restitution in M.H. was initially imposed when the juvenile


                                    16
was placed on probation; however, the order was only contested after

that probation was revoked for failure to pay it.

      In James v. Commission for Lawyer Discipline, 310 S.W.3d 598 (Tx.

App. Dallas 5th Dist. 2010 no writ), the appellant complained of the

commission’s order for the payment of restitution when the pleadings

had only requested judgment that the appellant be disciplined and the

commission have such other relief to which it is entitled. The Court of

Appeals noted that the Rules of Disciplinary Procedure provide that

sanctions may include restitution and the pleadings were sufficient to

include the order. The Court noted that the fact that the appellant

would be required to make restitution if the commission prevailed was

a “foreseeable consequence” of the allegations and requested relief. The

Court found no authority preventing a court from imposing restitution if

the commission did not explicitly request it in the pleadings. James at

609, 610.

      Again, James does not interpret Article 42.037, however the

principles upon which it was based are similar. Article 42.037 expressly

provides that the court imposing sentence may order restitution to any

victim.     Therefore, such an order is a foreseeable consequence of

conviction.    Contrary to the Appellant’s assertion, there was not a


                                    17
specific request for restitution in the commission’s pleading in James

(Appellant’s Brief at pg. 7). The lack of such a specific request was the

basis for that portion of the appeal. It also must be noted that Article

42.037 no less defines restitution as a foreseeable consequence of

conviction than the rules define it as a consequence of sanctions.

      The Appellant’s assertion that no statute specifically permits the

imposition of restitution when there was no request for it or where it

was affirmatively waived (Appellant’s Brief at pg. 8) is misleading.

Article 42.037 grants the trial court the discretion to order the payment

of restitution to any victim upon conviction. That discretion is not

conditioned upon a request from the victim nor does it indicate that the

victim or the State can remove the court’s discretion by waiver.

      The purpose of the statute giving the trial court discretion, while

certainly including the compensation of the victim for the harm

suffered, also contemplates effectual opportunities to rehabilitate the

offender and to deter future harm. Punishment, including restitution,

not only is intended to compensate the victim, but also to benefit

society. Hanna, supra. Article 42.037 gives the trial court the discretion

to impose restitution. It does not abuse that discretion by doing so

merely because the victim and the State see little use in it based upon


                                    18
doubts about the possibility of payment and the desire to see jail time

assessed.   While those wishes certainly may be considered, it is

respectfully submitted that they are not necessarily controlling and the

court may consider all aspects of the case in exercising that discretion.

      The opinions of the victim and the prosecutor did not constitute a

waiver at all, much less an unequivocal one. The trial court also had

before it the Appellant’s own promises that he could and would make

things right by paying the restitution and his counsel’s request that the

court determine an amount of restitution to be paid from the evidence.

The order for the payment of restitution was neither arbitrary, nor

outside the scope of reasonable disagreement.




                                    19
                               PRAYER

      The State of Texas respectfully moves that this appeal be

dismissed for want of jurisdiction or, in the alternative, prays that the

judgment of conviction herein be, in all things, be affirmed.

                                            Respectfully Submitted,

                                            HENRY GARZA
                                            District Attorney

                                            /s/   Bob D. Odom
                                            BOB D. ODOM
                                            Assistant District Attorney
                                            P.O. Box 540
                                            Belton, Tx 76513
                                            (254) 933-5215
                                            FAX (254) 933-5704
                                            DistrictAttorney@co.bell.tx.us
                                            SBA No. 15200000


     CERTIFICATE OF COMPLIANCE WITH RULE 9

      This is to certify that the State’s Brief is in compliance with Rule 9

of the Texas Rules of Appellate Procedure and that portion which must be

included under Rule 9.4(i)(1) contains 2,821words.

                                            /s/   Bob D. Odom
                                            BOB D. ODOM
                                            Assistant District Attorney



                                    20
                  CERTIFICATE OF SERVICE

      This is to certify that a true and correct copy of this brief has been

served upon, Ken Mahaffey, Counsel for Appellant, by electronic transfer

via Email, addressed to him at Ken_Maffey@yahoo.com on this 13th day

of April, 2015.

                                           /s/   Bob D. Odom
                                           BOB D. ODOM
                                           Assistant District Attorney




                                    21
