                           COURT OF APPEALS
                            SECOND DISTRICT OF TEXAS
                                  FORT WORTH


                                  NO. 2-09-187-CR


JEFFREY EARL LEW IS                                                      APPELLANT

                                            V.

THE STATE OF TEXAS                                                              STATE

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            FROM THE 158TH DISTRICT COURT OF DENTON COUNTY

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                          MEMORANDUM OPINION 1

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      Appellant Jeffrey Earl Lewis appeals the trial court’s order that requires him

to pay restitution as a result of his guilty plea to criminal mischief. In three issues,

he contends that the evidence is legally and factually insufficient to support the

restitution order. W e affirm.




      1
           See Tex. R. App. P. 47.4.
                                  Background Facts

       A Denton County grand jury indicted appellant for criminal mischief causing

damage between $20,000 and $100,000, which is a third-degree felony. 2 The

indictment alleged that between May 30, 2008 and June 3, 2008, appellant “did then

and there intentionally or knowingly damage or destroy tangible property, to-wit: a

residence . . . by removing countertops, appliances, cabinets, breaking windows,

doors and damaging walls without the effective consent of Diane Barfield, the owner

of said property.”

       Appellant pled guilty to class A misdemeanor criminal mischief.3 In accordance

with his plea, he received admonishments, waived statutory and constitutional rights,

and judicially confessed that he understood the charge against him and that he was

“GUILTY of the offense of LESSER-INCLUDED CRIMINAL MISCHIEF as alleged

in the charging instrument.” Appellant specifically agreed, “[T]he Court may consider

my judicial confession as evidence in this case.” The trial court placed him on two

years’ deferred adjudication with several expressed conditions, including paying

restitution, and under the parties stipulation, the court left the issue of the restitution

amount as “TBD” (to be determined). 4 After an evidentiary hearing, the trial court


       2
            See Tex. Penal Code Ann. § 28.03(a), (b)(5) (Vernon Supp. 2009).
       3
       See id. § 28.03(b)(3) (providing that criminal mischief is a class A
misdemeanor when the amount of damage is between $500 and $1,500).
       4
        As part of the stipulation, appellant agreed to not be held to a cap (based
on the reduced offense that he pled guilty to) on the amount of restitution that the

                                            2
ordered appellant to pay $55,000 at the rate of $2,600 per month. Appellant filed a

motion for new trial and notice of this appeal.

                       The Propriety of the Restitution Order

      Each of appellant’s three issues regard whether the evidence adequately

supports the trial court’s restitution order. The code of criminal procedure provides

that “the court that sentences a defendant convicted of an offense may order the

defendant to make restitution.” Tex. Code Crim. Proc. Ann. art. 42.037(a) (Vernon

Supp. 2009); see Tex. Const. art. I, § 30(b)(4); Weir v. State, 278 S.W .3d 364,

366–67 (Tex. Crim. App. 2009). In determining the amount of restitution, the court

shall consider “the amount of the loss sustained by any victim” and “other factors the

court deems appropriate.” Tex. Code Crim. Proc. Ann. art. 42.037(c). “The court

shall impose an order of restitution that is as fair as possible to the victim,” and the

“standard of proof is a preponderance of the evidence. The burden of demonstrating

the amount of the loss sustained by a victim as a result of the offense is on the

prosecuting attorney.” Id. art. 42.037(e), (k). If an offense results in damage, loss,

or destruction of a victim’s property, the trial court may order the defendant to return

the property or, if the return of the property is impossible or inadequate, to pay the

victim the greater of the value of the property on the date of the damage or “the

value of the property on the date of sentencing, less the value of any part of the

property that is returned on the date the property is returned.” Id. art. 42.037(b)(1).


State could recover.

                                           3
      W e review a trial court’s decision to order restitution under an abuse of

discretion standard. See Campbell v. State, 5 S.W .3d 693, 696 (Tex. Crim. App.

1999); Burris v. State, 172 S.W .3d 75, 77 (Tex. App.—Fort W orth 2005, no pet.);

Lemos v. State, 27 S.W .3d 42, 45 (Tex. App.—San Antonio 2000, pet. ref’d). An

abuse of discretion occurs if the trial court acts without reference to any guiding rules

or principles or acts arbitrarily or unreasonably. Montgomery v. State, 810 S.W .2d

372, 380 (Tex. Crim. App. 1990) (op. on reh’g). A trial court abuses its discretion

when it sets restitution in an amount that is unjust or unsupported by facts. 5

Campbell, 5 S.W .3d at 696 (citing Cartwright v. State, 605 S.W .2d 287, 289 (Tex.

Crim. App. [Panel Op.] 1980)); see Burris, 172 S.W .3d at 78 (explaining that

“testimony from a . . . victim of the crime with personal knowledge of the amount of

[damages] incurred . . . is adequate to support a restitution order”); Knight v. State,

635 S.W .2d 650, 652–53 (Tex. App.—Fort Worth 1982, no pet.). “A trial court may

not order restitution for an offense for which the defendant is not criminally

responsible.” Campbell, 5 S.W .3d at 697.

      The evidence presented at the restitution hearing establishes that in 2004,

Joseph and Vlastie Marek sold a lakefront house in Denton County to appellant, but

      5
         W hile whether there is sufficient evidence to support the trial court’s
decision is a relevant part of our abuse of discretion analysis, legal and factual
sufficiency reviews are not equivalent to an abuse of discretion review. See In re
K.T., 107 S.W .3d 65, 74 (Tex. App.—San Antonio 2003, no pet.) (en banc) (stating
that “the criminal abuse of discretion standard” is “divorced from evidentiary
standards of legal and factual sufficiency”); Allbright v. State, 13 S.W .3d 817, 818
(Tex. App.—Fort W orth 2000, pet. ref’d).

                                           4
the Mareks were beneficiaries of a deed of trust on the property because appellant

was making mortgage payments to them. 6 At that time, the house “was totally

habitable. It had all of its appliances, all of its innards. It was in working condition.”

      Appellant was contractually required to pay county taxes on the property, but

in 2007, Vlastie’s estate paid them. Appellant also eventually fell behind on his

mortgage payments, so Diane foreclosed on the property and obtained a writ of

possession from a justice of the peace in 2008. Upon execution of the writ of

possession, Diane noticed that the house was “totally uninhabitable” because it was

      torn up. There were no kitchen cabinets. There were no bathroom
      cabinet[s].[ 7 ] There were no appliances, with the exception of the
      refrigerator that I’m assuming belonged to him, because it was not in
      the house when my mother and father lived there.
              The cabinets in the bathrooms were torn out, the sink in the
      kitchen, all the kitchen cabinets. The oven was on the -- out in the
      driveway.        The countertops were out on the driveway.
      The showerheads were gone. The smoke detectors were gone. The
      closets had been stripped of their shelving. I don’t know what it looked
      like after the doctor took possession in ‘04, but when my parents lived
      there, the closets had some nice built-ins; they were all removed.
      There was a nice built-in in the living room; that was removed, it was
      set on the floor, it was like a seating area, as well as the upper
      bookcases were removed. There was a nice built-in desk in the living
      room; that had been removed.[ 8 ]


      6
          Joseph and Vlastie are now dead; Diane Barfield, their daughter and the
executrix of their estate, and Danny Barfield (Diane’s husband) testified at the
restitution hearing.
      7
        Danny testified that appellant informed him that he sold the cabinets that
he took from the house.
      8
       The State introduced photographs that support Diane’s testimony about
the damage to the house. Diane also described that a staircase’s carpet had been

                                            5
      Diane contacted the police about the damage to the house. An individual who

had offered to pay $238,000 for the house before seeing the damage offered only

$208,000 and then $200,000 after seeing the damage, and the sale to that buyer

failed because appellant filed two lis pendens against the property. 9 Another buyer

eventually bought the house for $150,000. Diane testified, “I had gotten a bid to

repair the damages, and it was over $55,000.”

      From 2007 to 2008, the Denton County Appraisal District’s value of the

property decreased from $256,011 to $120,000 as a direct result of the damage. A

probate court awarded the Mareks’ estate a civil judgment of about $60,000 against

appellant a few weeks before the restitution hearing, but appellant, who now lives

in Iowa, had not paid that judgment at the time of the hearing. 10

Criminal responsibility




removed and doors had been damaged.
      9
         A lis pendens is a document that prevents a party to litigation from
transferring an interest in real property until the litigation is resolved. See Tex. Prop.
Code Ann. § 12.007 (Vernon Supp. 2009); World Savings Bank, F.S.B. v. Gantt, 246
S.W .3d 299, 303 (Tex. App.—Houston [14th Dist.] 2008, no pet.). The record
indicates that the lis pendens issue was not resolved when the potential buyer made
his final $200,000 offer, which the Barfields did not respond to for reasons not
revealed by the record, because the lis pendens were still in effect in March 2009
when the individual who eventually purchased the property was preparing to
purchase it.
      10
        Diane testified that if the trial court awarded restitution, she would apply
appellant’s restitution payment to the amount awarded in the civil suit.

                                            6
      In his first issue, appellant argues that restitution is improper for the sole

reason that he owned the house at the time it was damaged and that he therefore

cannot be criminally responsible under the penal code’s criminal mischief provision.

The penal code states that a person commits criminal mischief when the person,

“without the effective consent of the owner,” “intentionally or knowingly damages or

destroys the tangible property of the owner.” Tex. Penal Code Ann. § 28.03(a)(1).

      W e cannot agree with appellant’s position that he is not criminally responsible

under this statute. The evidence shows that foreclosure occurred on May 6, 2008;

a document from the Denton Central Appraisal District shows that Diane (as

executrix of the estates) bought the property at a foreclosure sale on that date.

Although Diane testified that she did not know whether the damage to the house

occurred before or after foreclosure, the indictment alleged that Diane was the owner

of the house during appellant’s continuing course of conduct in damaging the house

that occurred from approximately May 30, 2008 to June 3, 2008. Appellant pled

guilty to the indictment’s allegations and judicially confessed that he “did unlawfully

commit the said offense . . . on the date alleged in the charging instrument.” “There

is no dispute that the appellant was criminally responsible for the [criminal mischief]

to which he pleaded [guilty].” See Campbell, 5 S.W .3d at 697; Chindaphone v.

State, 241 S.W .3d 217, 219 (Tex. App.—Fort W orth 2007, pet. ref’d) (stating that a

“judicial confession, standing alone, is sufficient to sustain a conviction upon a guilty

plea”); Garcia v. State, 694 S.W .2d 583, 585 (Tex. App.—Corpus Christi 1985, no


                                           7
pet.) (holding that a guilty plea and a judicial confession, among other evidence,

supported a restitution order).     Therefore, we hold that appellant is criminally

responsible for the offense that he pled guilty and judicially confessed to and that the

trial court’s restitution order is not improper on that basis. 11 W e overrule appellant’s

first issue.

Appellant’s intent and involvement in damaging the property

       In his second issue, appellant contends that the evidence is legally insufficient

to support the trial court’s restitution order. He does not specify how the evidence

is insufficient other than by stating that “no rational fact finder could have found for

restitution” and that intent is “an essential element of the offense of criminal

mischief.” In his third issue, he asserts that the evidence is factually insufficient but

does not specify how it is insufficient other than by stating, “In the case at bar, the

factfinder was presented with a question about whether the appellant was involved

in damaging the property.”

       Appellant’s indictment alleges that he “intentionally or knowingly damage[d]

or destroy[ed] tangible property.” W e conclude that appellant’s judicial confession



       11
        To the extent that appellant’s argument that he is not criminally
responsible is an attempt to invalidate his guilty plea, we overrule the argument
because the trial court’s amended certification of his right of appeal states only that
he may appeal the trial court’s restitution order, not any other part of the court’s
proceedings. See Tex. R. App. P. 25.2(a)(2), (d), (f); Goyzueta v. State, 266 S.W .3d
126, 136 (Tex. App.—Fort W orth 2008, no pet.) (declining to address an issue that
was not within the scope of the trial court’s certification of the appellant’s right of
appeal).

                                            8
to this indictment provides sufficient evidence of his intent and involvement in

damaging the property. See Ramirez v. State, 139 S.W .3d 731, 732–33 (Tex.

App.—Fort W orth 2004, pet. ref’d) (explaining that the appellant “testified by means

of his written judicial confession that he committed each and every allegation in the

indictment” and that the judicial confession therefore “provided sufficient evidence

to support his conviction”); see also Pigg v. State, No. 03-07-00181-CR, 2007 W L

2462036, at *2 (Tex. App.—Austin Aug. 31, 2007, no pet.) (mem. op., not designated

for publication) (holding that a judicial confession along with a presentence

investigation report comprised a sufficient factual basis for a restitution award). Thus,

we hold that the trial court did not abuse its discretion by signing the restitution order,

and we overrule appellant’s second and third issues. 12




       12
         W e note that appellant’s issues each assert that the trial court erred by
ordering restitution; none of the issues expressly challenge the trial court’s
calculation of the $55,000 amount of restitution.

                                            9
                                    Conclusion

      Having overruled all of appellant’s issues, we affirm the trial court’s judgment.



                                              TERRIE LIVINGSTON
                                              CHIEF JUSTICE

PANEL: LIVINGSTON, C.J.; GARDNER and MEIER, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: June 10, 2010




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