                                                                                      ACCEPTED
                                                                                   01-14-00900-cr
                                                                       FIRST COURT OF APPEALS
                                                                               HOUSTON, TEXAS
                                                                            5/13/2015 11:18:48 AM
                                                                            CHRISTOPHER PRINE
                                                                                           CLERK


                     No. 01-14-00900-CR
                              In the                           FILED IN
                       Court of Appeals                 1st COURT OF APPEALS
                                                            HOUSTON, TEXAS
                             For the
                                                        5/13/2015 11:18:48 AM
                 First Judicial District of Texas
                                                        CHRISTOPHER A. PRINE
                           At Houston                            Clerk

                  
                         No. 1344231
                 In the 180th District Court of
                     Harris County, Texas
                  
                     FELICITY BURRIS
                            Appellant
                              v.
                  THE STATE OF TEXAS
                             Appellee
                  
                STATE’S APPELLATE BRIEF
                  
                                                DEVON ANDERSON
                                                District Attorney
                                                Harris County, Texas
                                                CARLY DESSAUER
                                                Assistant District Attorney
                                                WILLIAM T. EXLEY, JR.
                                                Assistant District Attorney
                                                Harris County, Texas
                                                1201 Franklin, Suite 600
                                                Houston, Texas 77002
                                                Tel.: 713/755-5826
                                                Fax No.: 713/755-5809

ORAL ARGUMENT REQUESTED ONLY IF REQUESTED BY APPELLANT
                 STATEMENT REGARDING ORAL ARGUMENT
      Pursuant to Texas Rule of Appellate Procedure 9.4(g) and Texas Rule of

Appellate Procedure 39.1, the State requests oral argument only if appellant requests

oral argument.

                     IDENTIFICATION OF THE PARTIES
      Pursuant to Texas Rule of Appellate Procedure 38.2(a)(1)(A), a complete list of

the names of all interested parties is provided below.

      Counsel for the State:

             Devon Anderson  District Attorney of Harris County

             Carly Dessauer  Assistant District Attorney on appeal

             William T. Exley, Jr.  Assistant District Attorney at trial

      Appellant or criminal defendant:

             Felicity Burris

      Counsel for Appellant:

             Tommy LaFon  Attorney at trial and on appeal

      Trial Judge:

             Hon. Catherine Evans




                                           ii
                                             TABLE OF CONTENTS
STATEMENT REGARDING ORAL ARGUMENT .................................................... ii
IDENTIFICATION OF THE PARTIES ......................................................................... ii
TABLE OF AUTHORITIES ............................................................................................. iv
STATEMENT OF THE CASE .......................................................................................... 1
STATEMENT OF FACTS .................................................................................................. 1
SUMMARY OF THE ARGUMENT ................................................................................. 3
REPLY TO APPELLANT’S POINT OF ERROR ......................................................... 4
I. The trial court did not abuse its discretion when ordering appellant to pay
   $12,146 in restitution to the complainant for the costs of demolishing the
   catastrophically destroyed building. ................................................................................ 4
    a. Trial court did not abuse its discretion when it included the cost of
       demolishing the building because the costs were supported by the
       record............................................................................................................................ 7
    b. The trial court did not abuse its discretion in ordering appellant to pay
       restitution for the structure’s demolition even though it had not
       occurred because the record established that the complainant would
       incurr the cost. ............................................................................................................. 8
    c. The trial court did not abuse its discretion in assessing the cost of
       demolishing the remaining structure because its order was just. ........................ 10
CONCLUSION ................................................................................................................... 13
CERTIFICATE OF COMPLIANCE .............................................................................. 14
CERTIFICATE OF SERVICE ......................................................................................... 15




                                                                   iii
                                    TABLE OF AUTHORITIES
CASES
Cabla v. State,
  6 S.W.3d 543 (Tex. Crim. App. 1999) ............................................................................. 5
Campbell v. State,
  5 S.W.3d 693 (Tex. Crim. App. 1999) ...............................................................5, 6, 7, 11
Cantrell v. State,
  75 S.W.3d 503 (Tex. App.—Texarkana 2002, pet. ref’d) .............................................. 5
Cartwright v. State,
  605 S.W.2d 287 (Tex. Crim. App. 1980) ......................................................................... 4
Drilling v. State,
  134 S.W.3d 468 (Tex. App.—Waco 2004, no pet.) ............................................... 4, 5, 7
Gonzalez v. State,
  117 S.W.3d 831 (Tex. Crim. App. 2003) ......................................................................... 4
LaFleur v. State,
  848 S.W.2d 266 (Tex. App.—Beaumont 1993, no pet.) ............................................. 10
Lemos v. State,
  27 S.W.3d 42 (Tex. App.—San Antonio 2000, pet. ref’d) .......................................... 10
Simpson v. State,
  772 S.W.2d 276 (Tex. App.—Amarillo 1989, no pet.) ................................................ 10

STATUTES
TEX. CODE CRIM. PROC. ANN. art. 42.037(a) (West Supp. 2014)..................................... 5
TEX. CODE CRIM. PROC. ANN. art. 42.037(b)(1)(B) (West Supp. 2014) .......................... 6
TEX. CODE CRIM. PROC. ANN. art. 42.037(c) (West Supp. 2014) ................................ 6, 9
TEX. CODE CRIM. PROC. ANN. art. 42.037(e) (West Supp. 2014) .............................. 6, 11
TEX. CODE CRIM. PROC. ANN. art. 42.037(h) (West Supp. 2014) .................................... 5
TEX. CODE CRIM. PROC. ANN. art. 42.037(k) (West Supp. 2014) .................................... 6
TEX. CODE CRIM. PROC. ANN. art. 42.12, §11(b) (West Supp. 2014) .............................. 5
TEX. PENAL CODE ANN. §28.02(a) (West 2011) ................................................................ 5



                                                         iv
RULES
TEX. R. APP. P. 9.4(g) ............................................................................................................. ii
TEX. R. APP. P. 9.4(i). ........................................................................................................... 14
TEX. R. APP. P. 38.2(a)(1)(A) ................................................................................................. ii
TEX. R. APP. P. 39.1 ................................................................................................................ ii




                                                                   v
TO THE HONORABLE COURT OF APPEALS:

                          STATEMENT OF THE CASE

      Appellant was charged with arson (CR at 16). She entered a plea of no contest

(CR at 46-48, 53-54). The trial court deferred appellant’s adjudication and placed her

on community supervision for five years (CR at 53-54). Appellant was ordered to pay

$25,851 in restitution as an amended condition of her community supervision (1 RR

at 68; CR at 56). The court certified appellant’s right to appeal its restitution order,

and appellant filed a timely notice of appeal (CR at 63-64).

                             STATEMENT OF FACTS

      Appellant pleaded no contest to arson and accepted a plea agreement with the

State that capped her punishment at five years deferred adjudication (CR at 46-47).

The trial court accepted this agreement, and placed appellant on community

supervision for five years (CR at 53-54).

      The trial court held a hearing to determine the amount of restitution appellant

should pay as a condition of her community supervision (1 RR). James Zoe, the son

of the complainant, testified at the hearing and informed the court that the building

on the property from which appellant operated her business, Late Nite Pies, was

catastrophically destroyed by the arson (1 RR at 8, 9, 11, 12). The building could not

be occupied or used since the fire (1 RR at 12-13). The building had been gutted by

the fire, and while the exterior walls were standing, they were cracked (1 RR at 13).



                                            1
James testified that the exterior walls “cannot be used for a future building” and noted

that there was “no way” to use them (1 RR at 13).

      After the fire, the complainant had to pay $2,200 for cleaning up debris, $1,000

for securing the building in accordance with requirements of the City of Houston,

$200 for locks to secure the property, and $1,450 for boarding up the building (1 RR

at 15-18). At the time of trial, the building had not yet been torn down because the

complainant was gathering information regarding what to do with the property, and

James found it cheaper to maintain the boarded up structure than it would have been

to take care of an empty lot (1 RR at 46-47). However, James had obtained a quote

from a demolition company regarding what it would cost to take down the gutted

structure, $12,146, and testified that he was certain “without a doubt” that the

building would have to be demolished (1 RR at 18-19).

      Since the building had been catastrophically destroyed by the fire, the loss was

covered by a $250,000 insurance policy (1 RR at 20).           However, the insurance

company deducted $8,855 to cover the costs that the company paid directly to the

Houston Police Department for securing the building after the fire before sending the

remaining amount, $241,145, to the complainant (1 RR at 23-24). However, the

complainant had to pay income taxes for over $68,000 on the insurance proceeds as

the structure was a complete loss (1 RR at 26, 28, 29, 34, 35-36).

      James testified that if the complainant would have sold the property as it was

before the fire, he expected the market value to be a lot more than $250,000, but due

                                           2
to the difference between market value and the depreciation of the building, which

had been built in the 1920s, the most money the complainant could get from an

insurance policy was $250,000 (1 RR at 22, 37). The value of the land had increased

since the fire, but had the building not been a total loss from the fire, the property

would have been worth even more with the intact building (1 RR at 38, 39).

      Also at the hearing, appellant provided the trial court with two affidavits

attesting to her financial situation and a third mentioning her health problems (1 RR

at 57; Def. Ex. 1, 2, 3). In her own affidavit, appellant informed the court that she

was going through bankruptcy proceedings (Def. Ex. 1).

      After hearing this evidence, the trial court ordered appellant to pay $25,851 in

restitution based on the facts that the complainant had to pay $2,200 for cleaning up

debris from public property, $1,000 for securing the building after the fire in

accordance with requirements of the City of Houston, $200 for locks to secure the

property, $1,450 for boarding up the building after the fire, $12,146 for demolishing

the damaged walls, and $8,855 for the costs of the Houston Police Department

securing the smoldering property immediately after the arson (1 RR at 67-68, 78).

                       SUMMARY OF THE ARGUMENT

      The trial court did not abuse its discretion when including the cost of

demolishing the remains of the catastrophically destroyed building in the amount of

restitution appellant should pay as a condition of her community supervision because



                                          3
     the record factually established the amount and need for the cost and the trial court’s

     restitution order was just.

                     REPLY TO APPELLANT’S POINT OF ERROR

I.      The trial court did not abuse its discretion when ordering appellant to pay
        $12,146 in restitution to the complainant for the costs of demolishing the
        catastrophically destroyed building.

            The trial court did not abuse its discretion when including $12,146 for the cost

     of demolishing the destroyed structure in the amount of restitution appellant has to

     pay as a condition of her community supervision. The amount and need for the cost

     was supported by the record, as was evidence regarding appellant’s inability to pay the

     actual loss sustained by the complainant because of the arson. Because the trial court

     did not abuse its discretion, the court’s restitution order should be upheld.

                                       Standard of Review

            Challenges to restitution orders are reviewed under an abuse-of-discretion

     standard. Cartwright v. State, 605 S.W.2d 287, 288-89 (Tex. Crim. App. 1980); Drilling v.

     State, 134 S.W.3d 468, 469 (Tex. App.—Waco 2004, no pet.). An abuse of discretion

     occurs when a trial court’s decision is so clearly wrong that it lies outside the “zone of

     reasonable disagreement.” Gonzalez v. State, 117 S.W.3d 831, 839 (Tex. Crim. App.

     2003); Drilling, 134 S.W.3d at 469-70.

            A trial court is given broad discretion when granting restitution. Drilling, 134

     S.W.3d at 470. However, due process requires three restrictions on the restitution a



                                                 4
trial court may order: (1) the amount must be just and supported by a factual basis

within the record, (2) the restitution ordered 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 or victims of the offense with which the offender is charged.

Campbell v. State, 5 S.W.3d 693, 696-97 (Tex. Crim. App. 1999); Drilling, 134 S.W.3d at

469-70; Cantrell v. State, 75 S.W.3d 503, 512 (Tex. App.—Texarkana 2002, pet. ref’d);

see Cabla v. State, 6 S.W.3d 543, 546 (Tex. Crim. App. 1999).

                                    Applicable Law

         A person commits the offense of arson if she starts a fire with the intent to

destroy or damage the property of another either with the knowledge that the fire is

located on property belonging to another or that the fire has located within it property

belonging to another. TEX. PENAL CODE ANN. §28.02(a) (West 2011).

         Article 42.037(a) of the Code of Criminal Procedure allows the trial court that

sentences a defendant to an offense to order that defendant to make restitution to the

victim of the offense. TEX. CODE CRIM. PROC. ANN. art. 42.037(a) (West Supp.

2014).     The court may also impose upon a defendant placed on community

supervision the requirement that the defendant pay restitution. TEX. CODE CRIM.

PROC. ANN. art. 42.037(h) (West Supp. 2014); TEX. CODE CRIM. PROC. ANN. art.

42.12, §11(b) (West Supp. 2014).

         When a court determines the amount of restitution, the State bears the burden

of demonstrating the amount of loss sustained by the victim as a result of the offense

                                            5
while the defendant has the burden of demonstrating her financial resources, financial

needs, and dependents. TEX. CODE CRIM. PROC. ANN. art. 42.037(k) (West Supp.

2014).     In determining the amount of restitution, the court must consider “the

amount of loss sustained by any victim” and “other factors the court deems

appropriate.” TEX. CODE CRIM. PROC. ANN. art. 42.037(c) (West Supp. 2014). When

the court calculates the amount of restitution for an offense that resulted in the

damage or destruction of property that is impossible to return, the court may order

the defendant to pay the value of the property on the date of the destruction, or the

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

property that is returned. TEX. CODE CRIM. PROC. ANN. art. 42.037(b)(1)(B) (West

Supp. 2014). The court’s order of restitution must be “as fair as possible to the

victim” of the defendant’s offense but also must be “just.” TEX. CODE CRIM. PROC.

ANN. art. 42.037(e) (West Supp. 2014); Campbell, 5 S.W.3d at 696.

                                       Analysis

         The trial court did not err when it included the cost of demolition for the

destroyed structure in the amount of restitution appellant had to pay as a condition of

her community supervision even though the complainant had not yet paid that cost

because the amount and need for the cost was factually supported by the record. As

the trial court ordered appellant to pay limited amount of restitution for the

complainant’s expenses directly arising out of appellant’s offense of arson, the trial

court did not abuse its discretion.

                                          6
   a. Trial court did not abuse its discretion when it included the cost of
      demolishing the building because the costs were supported by the
      record.

      Firstly, the amount of restitution the court ordered appellant to pay for the cost

of demolishing the burnt building was factually supported by the record. See Campbell,

5 S.W.3d at 696; Drilling, 134 S.W.3d at 469-70. As the record shows, the $12,146 for

demolition costs was discussed during James testimony as well as documented in

State’s Exhibit 3 (1 RR at 18-19; State’s Ex. 3).         James testified that Cherry

Demolition had provided an estimate for the costs of tearing down the exterior walls,

removing the debris, and clearing the lot (1 RR at 18-19). James informed the trial

court that the estimate was lower than he expected to get if he obtained a new

estimate at the time of the hearing but assured the court that he expected the

destroyed structure to be demolished “[w]ithout a doubt” (1 RR at 19).

      Indeed, in his other testimony, James described how the building was

“destroyed,” “gutted,” and was “a catastrophic loss;” he explained to the court how

the complainant was only able to rent the parking lot of the property because the

building was unusable in its current state (1 RR at 12-13, 36, 37, 43, 46). While James

testified that the four walls of the building were standing, he told the court that they

were cracked, that they “could not be used for a future building,” and that there was

“no way to use those walls” (1 RR at 13). James acknowledged that the decision

regarding what to do with the building had not yet been made, but his testimony



                                           7
made clear that the complainant faced a choice between clearing the property of the

destroyed building alone or rebuilding a new building on the property which would

also require demolition of the existing structure (1 RR at 13, 18-19, 42, 46).

      Because the record established that the complainant would have to pay to

demolish the remaining walls and documented that the cost for that work would be at

least $12,146, the trial court did not abuse its discretion in assessing appellant with a

condition of community supervision that included paying $12,146 in restitution for

the cost of demolition that was supported by the record. As the amount was factually

supported by the record, the trial court did not abuse its discretion.

   b. The trial court did not abuse its discretion in ordering appellant to pay
      restitution for the structure’s demolition even though it had not occurred
      because the record established that the complainant would incur the
      cost.

      Secondly, despite the fact that the cost of demolition was factually supported

by the record, appellant points to the fact that the demolition—and its expense—had

not yet occurred and to James’ testimony that the complainant was carefully

considering what to do with the structure given that the building had been

grandfathered out of new code restrictions as reasons for why the trial court abused

its discretion (1 RR at 18-19, 47). Appellant claims that since this cost had not yet

occurred, it was not a loss and the trial court unjustly enriched the complainant by

ordering appellant to cover the cost. However, in making this argument, appellant




                                            8
overlooks the evidence in the record supporting the trial court’s ruling that the costs

would be incurred.

      Mentioned above, the court heard James explain that the walls of the structure

were cracked and “could not be used for a future building” because of the fire (1 RR

at 13). He asserted that the demolition costs would eventually occur “without a

doubt” (1 RR at 19). James further testified that while the demolition had not

occurred because the complainant was exploring what to do with the property, “a new

building will be put up. It is just we are not sure of what options we have, so we are

trying to get these options and then make logical decisions and go forward” (1 RR at

47). Given his testimony, the trial court did not abuse its discretion in determining

that the work would occur. Indeed, the trial court even stated on the record that it

believed that “the demolition work is a direct consequence of the arson. It is just like

if somebody broke a window getting into a house, whether you sweep it up now or

eventually, it has to be done” (1 RR at 67). Even though complainant had not yet

paid the cost, it was certain that the complainant would have to pay for the gutted

structure to be demolished for at least $12,146. Thus, the trial court did not abuse its

discretion in including the amount in its restitution order.

      Additionally, the trial court did not err in ordering appellant to pay restitution

for a cost that had not yet been incurred by the complainant as other courts have

assessed such “future costs” in their restitution orders. For example, the Forth Court

of Appeals upheld a trial court’s restitution order requiring the defendant to

                                            9
“[s]ubsidize the decedent’s family due to loss of income” for a total of $21,205. Lemos

v. State, 27 S.W.3d 42, 49 (Tex. App.—San Antonio 2000, pet. ref’d). The Court in

Lemos stated that “the lost earnings of the [complainant] were a proper subject of the

restitution order. Lemos, 27 S.W.3d at 49; see also LaFleur v. State, 848 S.W.2d 266, 268

(Tex. App.—Beaumont 1993, no pet.) (noting that the court ordered LaFleur to pay

for the present and future medical expenses incurred by a victim connected to his

offense; however, the issue of whether the future medical expenses were factually

supported by the record was not raised directly on appeal). Similarly, in Simpson v.

State, the Seventh Court noted that the trial court was within its discretion to order the

defendant to pay restitution for the complainant’s future psychological counseling and

medical costs if supported by the record. Simpson v. State, 772 S.W.2d 276, 279-80

(Tex. App.—Amarillo 1989, no pet.). However, as the record did not provide any

factual support for the amount of restitution set by the court, the Seventh Court

deleted the amount from Simpson’s restitution order. Simpson, 772 S.W.2d at 280.

This case is distinguishable from Simpson in that the amount of restitution the court

ordered appellant to pay is supported in the record. As such the trial court did not

abuse its discretion.

   c. The trial court did not abuse its discretion in assessing the cost of
      demolishing the remaining structure because its order was just.

       Finally, the trial court did not abuse its discretion in ordering appellant to pay

restitution that included the cost of tearing down the remaining structure destroyed by


                                           10
the fire because the amount of restitution was just to both the complainant and

appellant. See Campbell, 5 S.W.3d at 696 (“The amount of restitution must be just.”).

As the court’s restitution order must be “as fair as possible to the victim” of the

offense, the court included all of the direct costs arising out of appellant’s offense. See

TEX. CODE CRIM. PROC. ANN. art. 42.037(e) (West Supp. 2014). However, the trial

court did not require appellant to pay an amount close to the value of the building

before it was destroyed by her arson.         See TEX. CODE CRIM. PROC. ANN. art.

42.037(b)(1)(B) (West Supp. 2014) (“If the offense results in [the] destruction of

property of a victim of the offense, the court may order the defendant […] to pay an

amount equal to the greater of the value of the property on the date of the […]

destruction.”). Despite testimony from James that the building would have been

worth well over $250,000 before the fire and informing the trial court of the

substantial amount of income tax the complainant had to pay because the building

was catastrophically destroyed by the fire, the trial court ordered appellant to pay a

fraction of its vale in restitution (1 RR at 22, 26, 27, 37). While not explicitly stated on

the record, the trial court may have considered the evidence appellant presented

regarding her financial situation and her dependent when ordering appellant to pay

the lowest amount of restitution for the loss sustained by the complainant (Def. Ex.

1). Indeed, the court acknowledged at the conclusion of the hearing that appellant’s

restitution was minimal for her offense when the court told appellant, “to be on

deferred for arson for torching somebody’s building and having a restitution amount

                                            11
of $25,000, is quite low” (1 RR at 68). The court’s words may indicate that it wanted

appellant to be aware that her restitution order was minimal in light of the loss

suffered by the complainant. With appellant paying $12,146 in restitution for the cost

of tearing down the remaining burnt structure instead of an amount near the value of

the building, the trial court did not abuse its discretion in ordering a just amount.

Furthermore, its restitution order would not cause the complainant, who lost a

building worth well over the $250,000, to be unjustifiably enriched by having the

expense of the building’s demolition covered by appellant’s restitution.

      Because the trial court’s restitution order justly covers the complainant’s direct

expenses but yet indicates that the court considered the evidence introduced at the

hearing that put into question appellant’s ability to pay a substantial amount, the trial

court did not abuse its discretion. As such, this Court should uphold its restitution

order and overrule appellant’s sole point of error.




                                           12
                                    CONCLUSION
       The State of Texas respectfully urges the Court to overrule appellant’s point of

error and affirm the trial court’s restitution order.

                                                        DEVON ANDERSON
                                                        District Attorney
                                                        Harris County, Texas

                                                        /s/                   Carly Dessauer
                                                        ____________________________________________________________________________________________________________________________________________________________________________________




                                                        CARLY DESSAUER
                                                        Assistant District Attorney
                                                        Harris County, Texas
                                                         1201 Franklin, Suite 600
                                                        Houston, Texas 77002
                                                        (713) 755-5826
                                                        State Bar No. 24069083
                                                        dessauer_carly@dao.hctx.net
                                                        curry_alan@dao.hctx.net




                                             13
                      CERTIFICATE OF COMPLIANCE
      The undersigned attorney certifies that this computer-generated document has

a word count of 3,089 words, based upon the representation provided by the word

processing program that was used to create the document. TEX. R. APP. P. 9.4(i).




                                                    /s/                   Carly Dessauer
                                                    ____________________________________________________________________________________________________________________________________________________________________________________




                                                    CARLY DESSAUER
                                                    Assistant District Attorney
                                                    Harris County, Texas
                                                     1201 Franklin, Suite 600
                                                    Houston, Texas 77002
                                                    (713) 755-5826
                                                    State Bar No. 24069083




                                         14
                         CERTIFICATE OF SERVICE
      The State will serve a copy of the foregoing instrument to appellant’s attorney

though TexFile:

Tommy LaFon
Attorney at Law
1244 Heights Blvd.
Houston, Texas 77008
tomlafon@aol.com

                                                    /s/                   Carly Dessauer
                                                    ____________________________________________________________________________________________________________________________________________________________________________________




                                                    CARLY DESSAUER
                                                    Assistant District Attorney
                                                    Harris County, Texas
                                                     1201 Franklin, Suite 600
                                                    Houston, Texas 77002
                                                    (713) 755-5826
                                                    State Bar No. 24069083




Date: May 13, 2015




                                         15
