                                                                                 ACCEPTED
                                                                            03-15-00043-CR
                                                                                    4802624
                                                                   THIRD COURT OF APPEALS
                                                                             AUSTIN, TEXAS
                                                                       4/8/2015 10:17:15 AM
                                                                           JEFFREY D. KYLE
                                                                                      CLERK
                        No. 03-15-0043-CR

                 IN THE COURT OF APPEALS                    FILED IN
                                                     3rd COURT OF APPEALS
                                                         AUSTIN, TEXAS
        FOR THE THIRD SUPREME JUDICIAL            DISTRICT
                                                     4/8/2015 10:17:15 AM
                                                       JEFFREY D. KYLE
                                                             Clerk
                            OF TEXAS



                   KODY BROXTON, Appellant

                                VS.

                THE STATE OF TEXAS, Appellee




                  From the 264th District Court of
                        Bell County, Texas,
           the Honorable Judge Martha J. Trudo, presiding


                     APPELLANT’S BRIEF


                                      Ken Mahaffey
                                      Counsel for Appellant
                                      P. O. Box 684585
                                      Austin, Texas 78768
                                      Phone & Fax (512) 444-6557
                                      St. Bar No. 12830050
                                      Ken Mahaffey@yahoo.com


ORAL ARGUMENT REQUESTED ONLY IF STATE REQUESTS ARGUMENT
                                        TABLE OF CONTENTS


IDENTITY OF JUDGE, PARTIES AND COUNSEL. . . . . . . . . . . . . . . . . . . . . . . ii

INDEX OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii

STATEMENT OF PROCEDURAL HISTORY. . . . . . . . . . . . . . . . . . . . . . . . . . . . v

STATEMENT OF FACTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . vi

SUMMARY OF ARGUMENT.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . x

STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

QUESTION FOR REVIEW. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

        Does a trial court abuse its discretion when it orders restitution when
        both the victim and the State’s attorney waive that restitution and ask the
        court to only impose incarceration?

        I. Introduction... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .    2
        II. The Statute.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .   2
        III. Standard of Review. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .          3
        IV. Issue is One of First Impression.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .                  3
        V. Principal Purpose of Restitution is to Compensate Victim.. . . . . . . . . . .                                   4
        VI. Possibly Contrary Authority Distinguished. . . . . . . . . . . . . . . . . . . . . . .                          6
        VII. Remedy is to Delete the Order.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .                  8
        VIII. Conclusion... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .       8

PRAYER FOR RELIEF. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

CERTIFICATE OF SERVICE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10




                                                            i
              IDENTITY OF JUDGE, PARTIES AND COUNSEL

      The following is a list of all parties to the trial court's final judgment and their

counsel in the trial court:

      1. Trial Judge:                    Martha J. Trudo
                                         264th District Court
                                         P.O. Box 324
                                         Belton, Texas 76513

      2. Appellant:                      Kody Broxton
                                         Bartlett State Jail
                                         01972710
                                         1018 Arnold Drive
                                         Bartlett TX 76511

      3. Defense Counsel:                Michael White
                                         Attorney at Law
                                         100 Kasber Dr
                                         Temple TX 76502

      4. The State of Texas:             Fred Burns
                                         Bell Co. D. A.'s Office
                                         P.O. Box 540
                                         Belton, Texas 76513




                                           ii
                               INDEX OF AUTHORITIES

STATE CASES:

    Lemos v. State, 27 S.W.3d 42 (Tex. App. - San Antonio 2000, no pet.). . . . 3

    Allen v. State, 720 S.W.2d 618 (Tex. App. -
          Houston [1st Dist.] 1986, pet. ref’d).. . . . . . . . . . . . . . . . . . . . . . . . . . 4

    Barton v. State, 21 S.W.3d 287 (Tex. Crim. App. 2000). . . . . . . . . . . . . . . . 8

    Bayonne v. State, 12-10-282-CR (Tex. App. -
         Tyler 2011, no pet.).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

    Brooks v. State, 957 S.W.2d 30 (Tex. Crim. App. 1997). . . . . . . . . . . . . . . . 5

    Commission for Lawyer Discipline, 310 SW 3d 598
        (Tex. App. - Dallas 2010, no writ). . . . . . . . . . . . . . . . . . . . . . . . . . . 7

    Drilling v. State, 134 S.W.3d 468 (Tex. Crim. App. 2004). . . . . . . . . . . . . . 3

    Hanna v. State, 426 S.W.3d 87 (Tex. Crim. App. 2014). . . . . . . . . . . . . . . . 4

    In the matter of M. H., 662 S.W.2d 764 (Tex. App. -
           Corpus Christi, 1983, no writ.). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

    Johnson v. State, 784 S.W.2d 413 (Tex. Crim. App. 1990). . . . . . . . . . . . . . 6

    Martin v. State, 874 S.W.2d 674 (Tex. Crim. App. 1994). . . . . . . . . . . . . . . 4

    Montgomery v. State , 810 S.W.2d 372 (Tex. Crim. App. 1990). . . . . . . . . . 3




                                                  iii
STATUTES:

    Art. 42.037, Tex. Code Crim. Proc. (2013).. . . . . . . . . . . . . . . . . . . . . . 2, 6, 7

    Sec. 12.35 (a) & (b), Tex. Penal Code Ann. (2013). . . . . . . . . . . . . . . . . . . . 5

    Sec. 31.03 (e)(4), Tex. Penal Code Ann. (2013).. . . . . . . . . . . . . . . . . . . . . . 5




RULES:

    Rule 1.06Y, Tex. R. Disciplinary Conduct (2010). . . . . . . . . . . . . . . . . . . . . 7

    Rule 3.03, Texas Rules of Prof. Conduct, Vol 3A,
           Tex. Gov't Code Ann. (2015). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

    Rule 43.2 (c), Tex. R. App. Proc. (West 2015) . . . . . . . . . . . . . . . . . . . . . 2, 8




                                                 iv
                 STATEMENT OF PROCEDURAL HISTORY

      Kody Broxton was indicted for theft of property more than $1500 but less than

$20,000. (CR 4). The offense was alleged to have been committed on September 8,

2013 in Bell County, Texas. (CR 4). Appellant waived a jury and entered a plea of

guilty. (RR2 7). After a sentencing hearing before a judge, appellant was convicted

and sentenced to two years state jail, concurrently. (RR3 65; CR 54). On November

21, 2014, appellant perfected an appeal to this Court. (CR 29).

      Appellant was convicted in the same proceeding of four total thefts from the

same company charged in separate indictments. Trial counsel filed notices of appeal

in all four cases. Appellate counsel reviewed the reporter’s and clerk’s record in all

cases and determined the only arguable issue was a challenge to the restitution order.

This cause, 03-15-0043-CR, is the only conviction where a restitution order was

placed in the judgment. In the other causes, 03-15-0040-CR, 03-15-0041-CR and 03-

15-0042-CR, counsel has filed motions to withdraw and a brief pursuant to Anders

v. California, 386 U.S. 738, 744, 87 S.Ct. 1396, 1400, 18 L.Ed.2d 493 (1967).




                                          v
                            STATEMENT OF FACTS

I. Overview.

      Appellant entered a plea of guilty to four indictments for theft. (RR2 6 - 7). The

only recommendation from the State in exchange for that plea was that all sentences

run concurrently. (RR2 7). The trial court heard evidence and sentenced him to two

years in all four cases running concurrently. (RR3 65). Notices of appeal were filed

in each case. The only cognizable issue in any of these cases concerns restitution

ordered in cause number 71838, now bearing appellate cause number 03-15-0043-

CR, in which this brief is filed. As stated in the procedural history, separate briefs

were filed in the other three causes pursuant to Anders v. California, 386 U.S. 738,

744, 87 S.Ct. 1396, 1400, 18 L.Ed.2d 493 (1967).


II. Facts of Offense.

      For several months, Delta Centrifugal, a metal and machine shop in Bell

County, Texas, had been experiencing thefts of bulk metal from its storage yard.

(RR3 6 - 7). A hole had been cut in the fence surrounding the yard. (RR3 8). Just

before midnight on September 7, 3013, a manager for Delta Centrifugal, Kevin

Canfield, decided to make a security check of the yard. (RR3 8).

      Canfield apprehended Appellant and two co-defendants taking metal from the


                                          vi
yard. (RR3 8). It appears appellant had once briefly worked for the company some

two years before the offense. (RR3 16, 27). Delta Centrifugal recovered stolen

materials from appellant’s truck. (RR3 10 - 11). Appellant took responsibility for this

theft and also confessed to three other thefts from Delta Centrifugal on dates prior to

the date he was arrested. (RR3 28).


III. Restitution Amount.

       Canfield testified Delta Centrifugal had lost $64,000 dollars worth of materials

over a several month period. (RR3 16). He was unable to attribute a specific amount

to any date other than the date appellant was arrested. (RR3 16, 18). The company did

recover $7000 dollars worth of materials from appellant’s truck. (RR3 10 - 11).

Canfield agreed he could not say appellant was responsible for the other losses

included in the $64,000 dollars. (RR3 17). He also agreed it would be unfair to

require appellant to make restitution for any materials he did personally take. (RR3

17).

       Delta Centrifugal’s president Robert Rose also testified. (RR3 21). Rose did

not give any figure concerning the lost materials. He stated insurance did not cover

the loss. (RR3 25 - 26).

       Appellant testified that he believed he had taken materials worth from $15,000


                                          vii
to $20,000 dollars. (RR3 30 - 31). He also stated that “I'd say about 15 to 20 is what

we got from scrap, so possibly actual value maybe at the most 40, total. And that's

doubling.” (RR3 31). The trial court also asked him directly, “So you're thinking at

least that you stole at least $40,000 from them, you want to pay it back.” (RR3 43).

To which appellant responded, “Yes, ma'am.” (RR3 43). The trial court ordered

restitution of $30,000. (RR3 65); (CR 54). Given his admission of this amount,

appellant does not have grounds to challenge the amount of restitution.


IV. The Victim and State Expressly Waived Any Claims for Restitution.

      What is significant for this appeal is that neither the manager Kevin Canfield

nor the owner Robert Rose requested restitution. Canfield testified as follows:

      Q: [Defense Counsel]: You're not asking the Court to order restitution
      for things that Kody Broxton is not responsible for?

      A: I don't believe we're asking the Court for restitution. We're asking for
      punishment and jail time.

      Q: So you're not asking the Court to order Kody Broxton to pay back
      $64,000, $65,000 worth of materials?

      A: No.

(RR3 19). Robert Rose also testified he wanted jail time to send a message to others

and did not request restitution because he did not think appellant could pay it back.

(RR3 22, 25).

                                         viii
      Moreover, the State opposed probation and requested punishment by jail time

instead of restitution. Specifically, the prosecutor stated to the court as follows:

      Mr. Burns: You know, if you notice while they've been accused of
      huffing the numbers and exaggerating the amount of dollars lost of the
      theft, no one from Delta Centrifugal is asking you to have him pay them
      back. What they'd rather do is have a strong message to Kody Broxton
      and to the community that you simply can't steal from an employer like
      this . . . So Your Honor, in this situation I think this is a situation that the
      defendant should pay for what he did but not with restitution. He could
      pay for it with his freedom for the two years in the state jail . . .

(RR3 54 - 55)((emphasis added). The trial court duly imposed the jail time but also

ordered restitution anyway. The issue in this case is whether when both the victim and

the State expressly waive the opportunity for restitution, does a trial court abuse its

discretion when it orders restitution sua sponte.




                                            ix
                           SUMMARY OF ARGUMENT

      The trial court ordered restitution even though both the victim and the State

specifically stated they were not requesting it. The statute authorizing restitution does

address whether restitution can be ordered when expressly waived. What little

authority that does exist on this issue makes it clear the State can waive any such

request. General authority concerning the nature of restitution as a punishment option

emphases the goal of compensating the victim. Appellant argues it was an abuse of

discretion to order restitution when both interested parties, the complainant and the

prosecution, unequivocally request incarceration instead of restitution. Appellant was

sentenced to the maximum term of confinement authorized by law.




                                           x
                         IN THE COURT OF APPEALS

             FOR THE THIRD SUPREME JUDICIAL DISTRICT

                                    OF TEXAS



                           KODY BROXTON, Appellant

                                        VS.

                        THE STATE OF TEXAS, Appellee


                             APPELLANT’S BRIEF


TO THE HONORABLE JUSTICES OF THE COURT OF APPEALS:

      COMES NOW Kody Broxton, Appellant, through counsel, Ken Mahaffey, and

respectfully submits this Brief.



                          STATEMENT OF THE CASE

      This is an appeal from an un-negotiated guilty plea where the only issue is

whether restitution should have been ordered when waived by the victim and the

State. Appellant now respectfully tenders this brief on appeal.




                                         1
QUESTION FOR REVIEW:

      Does a trial court abuse its discretion when it orders restitution when both the
      victim and the State’s attorney waive that restitution and ask the court to only
      impose incarceration?


                       ARGUMENT AND AUTHORITIES

I. Introduction.

      Both the victim and the State requested jail time rather than restitution. There

is little or no law concerning the trial court’s discretion to impose restitution absent

a request. The statute granting the power to order restitution does not address this

issue. Appellant will argue that this Court should delete the restitution order pursuant

to the Court’s power to modify judgments under Rule 43.2 (c), Tex. R. App. Proc.

(West 2015).


II. The Statute.

      The controlling statute concerning restitution is Art. 42.037, Tex. Code Crim.

Proc. (2013). The statute provides, in relevant part as follows:

      (a) In addition to any fine authorized by law, the court that sentences a
      defendant convicted of an offense may order the defendant to make
      restitution to any victim of the offense or to the compensation to victims
      of crime fund established under Subchapter B, Chapter 56, to the extent
      that fund has paid compensation to or on behalf of the victim. If 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

                                           2
      the order or for the limited order.

This statute does not expressly address whether restitution can be ordered absent a

request from the victim or the State’s attorney.


III. Standard of Review.

      The standard of review concerning restitution orders is whether the order was

an abuse of discretion. Lemos v. State, 27 S.W.3d 42 (Tex. App. - San Antonio 2000,

no pet.). A trial court abuses its discretion when it acts in an arbitrary or unreasonable

manner. Montgomery v. State , 810 S.W.2d 372, 380 (Tex. Crim. App. 1990). It is

also important to note that, because probation was denied, this matter must be

reviewed independently of any restitution provisions in Art. 42.12, Tex. Code Crim.

Proc. (2015)(governing grants of community supervision).


IV. Issue is One of First Impression.

      The issue of whether restitution can be ordered where both the victim and

State’s attorney waived it by specifically requesting jail time instead of such

compensation does not appear to have been litigated under the controlling statute.

Most restitution orders in criminal cases have been reviewed to determine whether

the amount was properly proved or whether ordered paid to an authorized party. See

e.g., Drilling v. State, 134 S.W.3d 468, 470 (Tex. Crim. App. 2004)(remanding

                                            3
because no evidence of fair market value); Martin v. State, 874 S.W.2d 674, 677-78

(Tex. Crim. App. 1994)(cannot order restitution to persons other than the victims of

the offense for which the defendant was convicted).

      Some decisions, however, implicitly recognized that restitution could be

waived by the State. See Allen v. State, 720 S.W.2d 618, 618 (Tex. App. - Houston

[1st Dist.] 1986, pet. ref’d)(State withdrew request for restitution); Bayonne v. State,

12-10-282-CR (Tex. App. - Tyler 2011, no pet.) (restitution order deleted at request

of State); Norman v. State, 04-04-00292-CR (Tex. App. - San Antonio 2007, no pet.)

(initially remanded for hearing on restitution amount but noting State waived

restitution at the hearing). These opinions recognize the State has the power to waive

any claim for restitution.


V. Principal Purpose of Restitution is to Compensate Victim.

      In a recent case challenging restitution in a DWI case where no victim was

alleged, the Court of Criminal Appeals discussed the nature of the remedy. See Hanna

v. State, 426 S.W.3d 87 (Tex. Crim. App. 2014). In Hanna, the Court observed as

follows:

      Restitution is not only a form of punishment, it is also a crime victim's
      statutory right. Restitution serves multiple purposes, including restoring
      the victim to the status quo and forcing an offender to address and
      remedy the specific harm that he has caused.

                                           4
      A broad interpretation of the restitution statutes provides judges with
      greater discretion in effectuating opportunities for rehabilitating
      criminals, deterring future harms, and efficiently compensating victims.


Id. at 91 (citations omitted). This language suggests that a trial court has discretion

to impose restitution as a type of punishment but places great emphasis on

compensation of the victim as its principal purpose. Nothing in this broad statement,

however, addressed whether restitution may be imposed when waived by the victim

and the State.

      Moreover, even if restitution is a form of punishment, it is not part of the

statutory range of punishment for the penal offense that appellant was convicted.

Appellant was charged under Sec. 31.03 (e)(4), Tex. Penal Code Ann. (2013). This

provision makes theft of $1,500.00 to $20,000.00 a state jail felony. Id. Under Sec.

12.35 (a) & (b), Tex. Penal Code Ann. (2013), the range of punishment for state jail

felonies is from 180 days to two years in the state jail and a fine up to $10,000. Since

it is not stated as part of the punishment, restitution is a qualitatively different type

remedy that logically should be requested in some form before it is imposed. A

pleading or some sort of request has been required for other forms of punishment

outside of the normal range of punishment. See e.g., Brooks v. State, 957 S.W.2d 30,

34 (Tex. Crim. App. 1997)(improper to enhance punishment with prior conviction



                                           5
where no pleading alleged it); Johnson v. State, 784 S.W.2d 413, 415 (Tex. Crim.

App. 1990)(deadly weapon finding deleted because no allegation made in the

indictment).


VI. Possibly Contrary Authority Distinguished.

      Candor with the Court is always important. Counsel owes a duty to disclose

contrary authority. Rule 3.03, Texas Rules of Prof. Conduct, Vol 3A, Tex. Gov't Code

Ann. (2015). The issue here is whether the trial court may impose restitution under

Art. 42.037, Tex. Code Crim. Proc. (2013), even when it is expressly waived. This

question has been addressed under somewhat similar statutes. Appellant will discuss

those decisions.

      In one case, this issue was raised in a juvenile prosecution. See In the matter

of M. H., 662 S.W.2d 764 (Tex. App. - Corpus Christi, 1983, no writ.). In that case,

the appellant challenged revocation of probation for failing to comply with a

restitution order because the State’s pleadings failed to request it. Id. at 766. The

argument relied on the Rule 301, Tex. R. Civ. Proc. (1983), that a judgment may not

order relief unsupported by a proper pleading. Id. The reviewing court upheld the

restitution order based on Sec. 54.05(d)(1)(D), Texas Family Code (1983). Under that

provision, restitution is proper if a finding is made under Sec. 54.05(c), supra, “that


                                          6
the protection of the public and the child requires disposition.” M.H., supra at 766.

      Appellant submits M.H., supra, is distinguishable for three reasons. First it

involved a different statute and Art. 42.037, Tex. Code Crim. Proc. (2013), does not

require the type of affirmative finding that supported the order in that case. Second,

the focus was on the pleading for restitution rather than the unequivocal waiver of

restitution as occurred in this case. M.H, supra at 766. Third, the case involved

restitution as a condition of probation not as a judgment imposing it as part of an

executed sentence of incarceration. Id.

      Another similar case which challenged restitution on the same basis; i.e., the

failure to request it by proper pleading. In James v. Commission for Lawyer

Discipline, 310 SW 3d 598 (Tex. App. - Dallas 2010, no writ). Like M.H., supra, the

appellant challenged a restitution award because there was no pleading requesting it.

James, supra at 609. The reviewing court held the pleadings alleging attorney

misconduct and requesting “sanctions” under Rule 1.06Y, Tex. R. Disciplinary

Conduct (2010), authorized the trial court order because the term sanction is defined

to include restitution. Id. at 610. Again, the is case is distinguishable because there

was a specific request for restitution in the pleadings and the controlling statute

clearly authorized it. Moreover, James, supra and did not address the proper course

of action when both the victim and counsel for the petitioner expressly state they are

                                          7
not requesting restitution.

      In the case at bar, no statute specifically permits imposition of restitution when

there was no request for it, nor allows it when affirmatively waived. The restitution

was not imposed as a condition of community supervision but rather on top of what

the State and victim specifically requested be imposed instead, i.e.: incarceration.

Appellants are always subject to systemic waiver rules and there appears to be no

reason why this should not apply to other interested parties.


VII. Remedy is to Delete the Order.

      There are two types of remedies for trial court errors concerning restitution.

The appellate court may either remand for a new hearing or reform the judgment to

delete the restitution order. Barton v. State, 21 S.W.3d 287, 289 (Tex. Crim. App.

2000). Here, the error asserted is an abuse of discretion in ordering restitution that

was expressly waived by both the victim and the State’s attorney. The record clearly

establishes both facts. (RR3 19, 22, 25, 54 - 55). In this case, a remand for a new

hearing would not add anything new to the record. This Court should exercise its

jurisdiction under Rule 43.2 (c), Tex. R. App. Proc. (West 2015) (court of appeals

may “reverse the trial court’s judgment in whole or in part and render the judgment

the trial court should have rendered.”). The proper remedy is to reform the judgment


                                          8
deleting the order concerning restitution.


VIII. Conclusion.

      Both the victim and the State’s attorney specifically stated they were not

requesting restitution. Restitution can be an aspect of punishment but its primary

purpose is to serve the victim. The statutory authority for ordering restitution does not

expressly grant a trial court the power to order restitution when it is affirmatively

waived. While this issue had not be addressed directly, such authority that does exist

clearly shows the State may waive any restitution. The trial court abused its discretion

by ignoring that waiver. This Court should delete the restitution order.




                                             9
                            PRAYER FOR RELIEF

      WHEREFORE, PREMISES CONSIDERED, Appellant respectfully prays that

the judgment of conviction be reversed and the matter be remanded to the trial court

for a new trial.




                                                   Respectfully Submitted,



                                                   Ken Mahaffey
                                                   Counsel for Appellant
                                                   P.O. Box 684585
                                                   Austin, Texas 78768
                                                   Phone & Fax (512) 444-6557
                                                   St. Bar. No. 12830050
                                                   Ken Mahaffey@yahoo.com




                         CERTIFICATE OF SERVICE

      The above signature certifies that on April 3, 2015, this document was sent to

the Bell County D.A.’s Office, P.O. Box 540, Belton, Texas 76513 and to Kody

Broxton, 01972710, 1018 Arnold Drive, Bartlett State Jail, Bartlett TX 76511. The

above signature also certifies that this document contains 3508 words in compliance

with Rule 9.4, Tex. R. App. Proc. (2015)(not to exceed 15,000 words).

                                        10
