                                    COURT OF APPEALS
                                 EIGHTH DISTRICT OF TEXAS
                                      EL PASO, TEXAS


                                                  §

 GEORGE BERTRAM MATHISON, IV,                     §               No. 08-10-00098-CR

                   Appellant,                     §                  Appeal from the

 v.                                               §            396th Judicial District Court

 THE STATE OF TEXAS,                              §             of Tarrant County, Texas

                   Appellee.                      §                  (TC# 1093066D)



                                           OPINION

       George Bertram Mathison, IV, was charged with theft of property valued between

$100,000 and $200,000. Pursuant to a plea agreement, he pled guilty to theft of property valued

between $20,000 and $100,000, and the State recommended that he receive deferred adjudication

and pay restitution in an amount to be determined by the trial court. In accordance with the plea

agreement, the court deferred the adjudication of guilt and placed Mathison on community

supervision for ten (10) years. The court subsequently conducted an evidentiary hearing and

ordered Mathison to pay $193,700 in restitution as a condition of community supervision.

Mathison raises six issues on appeal. We affirm.1


       1
          In the written plea agreement, Mathison states, “I give up and waive any and all rights of
appeal in this case.” On the day that the plea agreement was signed, the trial court entered a
certification of defendant’s right of appeal, stating that this is a plea-bargain case and Mathison has
no right of appeal, and also that Mathison waived the right to appeal. After the restitution order was
entered, Mathison filed a notice of appeal “specific to the amount of restitution.” The trial court
subsequently entered a second certification of defendant’s right of appeal, stating that Mathison had
received permission to appeal and that the appeal “involves another appealable order,” namely, the
restitution order. The State does not challenge our authority to consider any of the issues raised in
                             Factual Basis for Amount of Restitution

       In his second issue, Mathison asserts that the amount of restitution is not supported by the

record. We review this issue for an abuse of discretion. Nunez v. State, 27 S.W.3d 210, 216

(Tex.App.--El Paso 2000, no pet.). We will uphold the restitution order if it is just and if there is

a factual basis in the record for the amount found by the trial court. See id. at 216-17.

       The record reflects that Jon Aubrey was the president and founder of a corporation called

Bentwater Construction. He owned all of the corporation’s shares. Mathison was a vice-

president of Bentwater. Aubrey testified that Mathison was paid a weekly salary and was entitled

to a commission based on profitable work that he brought into the corporation. According to

Aubrey, Mathison never earned a commission because none of his projects were profitable.

Aubrey testified that he provided the prosecution with copies of Mathison’s expense accounts,

which would show instances in which Mathison paid for items such as software and was

reimbursed from corporate funds. He also provided the prosecution with copies of “1099s” for

all of Bentwater’s employees. Defense counsel questioned Aubrey about funds that Aubrey had

withdrawn from Bentwater’s bank account, suggesting that these were illicit transactions.



this appeal. We express no opinion as to whether a plea-bargaining defendant may ordinarily appeal
a restitution order. But see Stretcher v. State, No. 06-08-00233-CR, 2009 WL 3672882, at *3
(Tex.App.--Texarkana Nov. 6, 2009, no pet.)(memo op., not designated for publication)(“Stretcher
essentially argues that when he agreed to allow the trial court to set the amount of restitution, he did
not anticipate such a large amount. Since the parties entered a negotiated plea agreement and that
agreement specifically allowed the trial court to set the amount of restitution, which it did after
conducting an evidentiary hearing, we find that Stretcher does not meet the narrow grounds available
to appeal a negotiated plea agreement.”). Because the certification states that the trial court granted
Mathison permission to appeal and does not expressly limit the grounds of appeal, we will address
all of the issues raised by Mathison, including his claim that his plea was involuntary. But see
Cooper v. State, 45 S.W.3d 77, 77 (Tex.Crim.App. 2001)(holding that a plea-bargaining defendant
may not appeal the voluntariness of the plea).

                                                  -2-
       Phillip Morris, a forensic financial analyst for Tarrant County, testified that he reviewed

bank account transactions for Mathison’s personal bank account and for Bentwater’s account.

He prepared charts showing unauthorized withdrawals that Mathison made from Bentwater’s

account in 2003 and 2004. One of the charts showed a total of $193,700 in withdrawals. Morris

testified that most of these funds were deposited into Mathison’s personal account on the day

they were withdrawn or soon thereafter. To support his testimony, Morris prepared a spreadsheet

correlating the withdrawals with deposits into Mathison’s bank account. For example, the

spreadsheet showed that on August 30, 2004, Mathison withdrew $60,000 to purchase a cashier’s

check made out to himself for the purpose of “Mathison Earned Income/Commission.” That

same day, he deposited $60,000 into his personal account. On August 6, 2004, he withdrew

$9,700 from Bentwater’s account, noting “Re: Aubry Trans” on the withdrawal slip. That same

day, he deposited $9,300 into his personal account. Morris testified, without objection, that

Aubrey told him that all of the withdrawals reflected in this chart and spreadsheet were made

without consent. He also reviewed Mathison’s W-2 forms and Texas Workforce Commission

records to determine Mathison’s reported compensation. He did not include any of the reported

compensation in the $193,700 total. Morris specifically testified that he did not find any 1099s

to indicate that the $60,000 withdrawal for “earned income/commission” constituted legitimate

compensation. Aubrey testified that there was no 1099 for this amount. Morris deduced that

notations such as “earned income/commission” and “Re: Aubry Trans” were simply attempts to

cover-up the fact that Mathison was stealing money.

       On cross-examination, Morris testified that he did not know that Aubrey had taken money

out of Bentwater’s account for his personal benefit, nor did he know that Aubrey asked Mathison


                                                -3-
to make certain withdrawals for Aubrey’s benefit. Based on Mathison’s position within the

company, Morris indicated that he may have been authorized to purchase software and office

supplies and to pay vendors. But Morris did not review any documentation regarding these types

of transactions. Both Morris and Aubrey acknowledged that Mathison had authority to withdraw

funds from the bank.

       Mathison testified that he and Aubrey agreed that he would not take a salary, but would

be paid a commission based on projects that he brought to the company. According to Mathison,

Bentwater was in financial disarray when he joined the company, and Aubrey was “notorious”

for coming up with reasons not to pay people. He claimed that he earned over $202,000 in

commissions, that he had the authority to pay himself, and that he did pay himself. He also

claimed that on numerous occasions, he withdrew corporate funds to buy cashier’s checks to

make corporate purchases as a result of Bentwater’s bad credit. Mathison admitted that he did

not receive a 1099 for the $60,000 withdrawal and that he did not report it or the other funds that

he withdrew on his tax return. He acknowledged that he had pled guilty to stealing from Aubrey

and that he owed him “a little bit” of money. Nevertheless, he testified that the “whole premise”

of his prosecution was to provide a defense for Aubrey in a civil suit. Aubrey and Bentwater had

been sued for their failure to pay subcontractors on a project. Aubrey filed a third-party claim in

that suit against Mathison, claiming Mathison’s embezzlement led to the nonpayment. Mathison

testified that Aubrey needed “a solid verdict against [Mathison] in order to protect himself from

this lawsuit.”

       Mathison complains on appeal that the trial court erroneously assumed from Morris’s

testimony that $193,700 in withdrawals were unauthorized, even though Aubrey never testified


                                                -4-
to the precise amount of the unauthorized withdrawals. The lack of testimony from Aubrey is

immaterial because Morris testified that, based on his conversation with Aubrey, the entire

$193,700 amount was unauthorized. Mathison also contends that the trial court failed to

consider what Aubrey owed Mathison for his services to Bentwater. We believe the court simply

resolved a credibility issue against Mathison. Aubrey testified that Mathison was paid a salary

and that he never actually earned a commission. Morris testified that the $193,700 sum excluded

Mathison’s salary. We conclude that there is an ample factual basis for the amount of restitution

awarded and that the amount is just.

       Mathison’s second issue is overruled.

                        Oral Pronouncement of Amount of Restitution

       In his first issue, Mathison asserts that the restitution order must be vacated because the

trial court did not orally pronounce the amount of restitution. The Texas Code of Criminal

Procedure states that “sentence shall be pronounced in the defendant’s presence.” TEX.CODE

CRIM.PROC.ANN. art. 42.03, § 1(a)(West Supp. 2011). Based on this statute, the Court of

Criminal Appeals has held, “A defendant’s sentence must be pronounced orally in his presence.

The judgment, including the sentence assessed, is just the written declaration and embodiment of

that oral pronouncement. When there is a conflict between the oral pronouncement of sentence

and the sentence in the written judgment, the oral pronouncement controls.” Taylor v. State, 131

S.W.3d 497, 500 (Tex.Crim.App. 2004)(footnotes omitted). Restitution is a form of punishment.

Weir v. State, 278 S.W.3d 364, 366 & n.6 (Tex.Crim.App. 2009). Accordingly, restitution

cannot be included in the written judgment of conviction unless it was included in the oral

pronouncement of sentence. See Sauceda v. State, 309 S.W.3d 767, 769 (Tex.App.--Amarillo


                                                -5-
2010, pet. ref’d); Alexander v. State, 301 S.W.3d 361, 363-64 (Tex.App.--Fort Worth 2009, no

pet.); cf. Taylor, 131 S.W.3d at 500-02 (holding that fine should be deleted from judgment

because it was not orally pronounced when deferred adjudication was revoked).

       In this case, the following exchange occurred at the end of the restitution hearing:

       The Court:              What I’d like to do is take everything under advisement,
                               look at all of the documents, and if I have any questions I’ll
                               get back with counsel, otherwise I’ll submit a written
                               finding.

       Defense Counsel:        Yes, Your Honor.

       The Court:              Is that agreeable with the State?

       Prosecutor:             That’s fine.

       Defense Counsel:        Yes, Your Honor.

The court subsequently entered the written order requiring Mathison to pay $193,700 in

restitution. The court also entered a written judgment. Attached to the judgment is a document

entitled “Conditions of Community Supervision,” which was signed by Mathison and which lists

the restitution order as a condition of community supervision. Mathison argues that there is a

conflict between the written judgment and the oral pronouncement of sentence because the court

did not orally state the amount of restitution.

       The cases that Mathison cites as support for his argument are distinguishable. In those

cases, the courts failed to include restitution in orally pronouncing sentence after the defendants

were convicted. See Sauceda, 309 S.W.3d at 769-70 (oral pronouncement following conviction

by jury); Alexander, 301 S.W.3d at 363-64 (oral pronouncement following revocation of deferred

adjudication community supervision); Weir v. State, 252 S.W.3d 85, 86-88 (Tex.App.--Austin



                                                  -6-
2008)(oral pronouncement following revocation of deferred adjudication community

supervision), rev’d in part on other grounds, 278 S.W.3d 364 (Tex.Crim.App. 2009). Here, the

trial court did not orally state the amount of restitution when placing Mathison on deferred

adjudication community supervision. Mathison was neither convicted nor sentenced when he

was placed on deferred adjudication. See Taylor, 131 S.W.3d at 500, 502. Restitution is simply

a condition of his community supervision. Therefore, it is not clear that the statutory requirement

of orally pronouncing sentence is applicable. See TEX.CODE CRIM.PROC.ANN. art. 42.03,

§ 1(a)(“[S]entence shall be pronounced in the defendant’s presence.”); Speth v. State, 6 S.W.3d

530, 532 (Tex.Crim.App. 1999)(“[C]ommunity supervision . . . is not part of the ‘sentence,’ as

. . . defined in the Code of Criminal Procedure.”).

       Assuming the requirement applies, we agree with the State that Mathison failed to

preserve any error. See TEX.R.APP.P. 33.1(a)(1). The trial judge advised counsel that he

intended to make a written finding regarding restitution, and both attorneys acquiesced to this

procedure. See Lemos v. State, 27 S.W.3d 42, 47 (Tex.App.--San Antonio 2000, pet.

ref’d)(holding that appellant’s complaints about specific items of restitution were not preserved

because he acquiesced to the items). Moreover, Mathison did not file a motion for new trial or

otherwise object when the court entered the written restitution order and the written conditions of

community supervision. The Court of Criminal Appeals has noted that community supervision is

not a right, but a contractual privilege and “by entering into the contractual relationship without

objection, a defendant affirmatively waives any rights encroached upon by the terms of the

contract.” Speth, 6 S.W.3d at 534. A defendant who benefits from this privilege must complain

to the trial court of any conditions that he finds objectionable. Id.


                                                 -7-
       Mathison’s first issue is overruled.

                                              Due Process

       In his third issue, Mathison asserts that he did not have notice that he could be ordered to

pay more than $100,000 in restitution when he pled guilty to theft of property valued between

$20,000 and $100,000. Therefore, he contends, his right to due process was violated.

       As Mathison acknowledges, the property-value range for the offense does not limit the

amount of restitution that may be awarded for a theft conviction. See Campbell v. State, 5

S.W.3d 693, 697, 701 (Tex.Crim.App. 1999). However, there are due process considerations in

setting the restitution amount. See id. at 696, 701-02.

       In Campbell, the appellant was ordered to pay $100,000 in restitution after he was

charged with, and pled no-contest to, theft of property valued at $20,000 or more but less than

$100,000. Id. at 695. He argued that his plea was involuntary because he did not realize that he

was subject to pay restitution in an amount that exceeded the property-value range set forth in the

indictment. See id. at 701. The Court of Criminal Appeals rejected this claim. Id. at 701-02.

Although the trial court did not admonish the appellant about restitution at the plea hearing, the

appellant and his attorney signed a written plea form, which requested that the trial court grant

deferred adjudication “with conditions to include restitution to all victims of this scheme,

whether pled in the indictment or not.” Id. The appellant also stipulated that he stole more than

$100,000 from the victims. Id. at 702. Accordingly, the Court of Criminal Appeals concluded

that he must have understood that he was asking for a restitution order that exceeded the

property-value range for the offense. Campbell, 5 S.W.3d at 702.

       Unlike in Campbell, Mathison did not stipulate that he stole more than $100,000, and he


                                                  -8-
claims that he did not understand that he could be ordered to pay more than that amount. As with

Mathison’s first issue, Mathison failed to raise this issue in the trial court. Consequently, it is not

preserved for review. See TEX.R.APP.P. 33.1(a)(1); see also Briggs v. State, 789 S.W.2d 918,

924 (Tex.Crim.App. 1990)(“Even constitutional errors may be waived by failure to object at

trial.”); cf. Issa v. State, 826 S.W.2d 159, 161 (Tex.Crim.App. 1992)(holding that appellant

preserved issued by including it in a motion for new trial, because he had no opportunity to

object until after the complained-of action was taken).

       In addition, Mathison has not presented a sufficient record for us to resolve his due

process complaint. Although his appellate brief, which was written by counsel, states that

Mathison did not understand that restitution could exceed $100,000, there is no evidence to that

effect in the record. It was Mathison’s burden to provide a sufficient record to demonstrate error.

Word v. State, 206 S.W.3d 646, 651-52 (Tex.Crim.App. 2006).

       Mathison’s third issue is overruled.

                                  Ineffective Assistance of Counsel

       In his fourth and fifth issues, Mathison asserts that his attorney was ineffective in failing

to make a closing argument and in failing to object to the lack of an oral pronouncement of the

amount of restitution. He argues that these failures rendered his plea involuntary and resulted in

an excessive restitution order.

       To prevail on his claim of ineffective assistance of counsel, Mathison must show that his

attorney’s representation fell below an objective standard of reasonableness and that there is a

reasonable probability that the result of the proceeding would have been different if not for

counsel’s errors. Strickland v. Washington, 466 U.S. 668, 687-88, 694, 104 S.Ct. 2052, 2064,


                                                  -9-
2068, 80 L.Ed.2d 674 (1984); Lopez v. State, 343 S.W.3d 137, 142 (Tex.Crim.App. 2011). In

evaluating counsel’s performance, we must presume that it fell within the wide range of

reasonably professional assistance. Lopez, 343 S.W.3d at 142. Any deficiency must be

affirmatively demonstrated in the trial record; we cannot engage in retrospective speculation. Id.

If the record does not reveal counsel’s reasons for the challenged conduct, we must “assume that

counsel had a strategy if any reasonably sound strategic motivation can be imagined.” Id. at 143.

The appellate record usually does not reveal counsel’s reasons. Id. Therefore, the Court of

Criminal Appeals has repeatedly held that ineffective assistance claims should generally be

raised on collateral review rather than on direct appeal. Id. An ineffectiveness claim may be

addressed on direct appeal only “[i]n the rare case in which trial counsel’s ineffectiveness is

apparent from the record.” Id. “However, this is a difficult hurdle to overcome: the record must

demonstrate that counsel’s performance fell below an objective standard of reasonableness as a

matter of law, and that no reasonable trial strategy could justify trial counsel’s acts or omissions,

regardless of his or her subjective reasoning.” Id.

       The record does not reveal why counsel failed to make a closing argument or failed to

object to the lack of an oral pronouncement. Mathison argues that there could be no sound

reason for these decisions. He asserts that counsel needed to summarize the evidence and present

a persuasive closing argument that only a minimal amount of restitution would be just. He also

asserts that the trial court would have been required to sustain an objection to the lack of an oral

pronouncement and that counsel would then have had a chance to respond to the amount found.

       “[D]eference to counsel’s tactical decisions in his closing presentation is particularly

important because of the broad range of legitimate defense strategy at that stage.” Yarborough v.


                                                -10-
Gentry, 540 U.S. 1, 6, 124 S.Ct. 1, 4, 157 L.Ed.2d 1 (2003). The Supreme Court has recognized

that “it might sometimes make sense to forgo closing argument altogether.” Id. at 6, 124 S.Ct. at

4. Here, the prosecutor did not make a formal closing argument; he just asked the court to

review State’s Exhibit 1 and make its decision based on the exhibit. That is when the judge

stated that he would like to take everything under advisement and would “get back with counsel”

if he had any questions. As discussed above, defense counsel did not voice any objection to this

procedure. State’s Exhibit 1 contained the chart and spreadsheets described above. It also

contained other charts and spreadsheets showing a total of $311,628.11, which was the amount

the State sought in restitution. Defense counsel had already cross-examined Morris, who was the

only witness called by the State, about how he arrived at this amount. He had also called Aubrey

and Mathison as witnesses to discredit Morris’s calculations and to show that the company was

poorly managed. It appears that defense counsel’s strategy was not to suggest a particular

amount of restitution, but to achieve a small amount by creating confusion and doubt regarding

the State’s computation. The actual amount ordered--$193,700--was significantly less than the

amount requested by the State.

       Considering these facts, we cannot say that defense counsel’s failure to make a closing

argument was objectively unreasonable as a matter of law. Likewise, we can easily imagine a

sound strategy for failing to object to the oral pronouncement. Defense counsel may have

believed that if he pressed the judge for an immediate figure, the judge would have adopted the

total amount requested by the State.

       Mathison’s fourth and fifth issues are overruled.

                                   Modification of Judgment


                                              -11-
       In his sixth and final issue, Mathison notes that the judgment incorrectly names the

offense as “theft of stolen property.” In fact, he pled guilty to theft of property. The State agrees

that the judgment should be reformed in this respect. Mathison’s sixth issue is sustained.

                                            Conclusion

       The judgment is modified to strike the word “stolen” from the description of the offense.

In all other respects, the judgment is affirmed.




January 25, 2012
                                               CHRISTOPHER ANTCLIFF, Justice

Before McClure, C.J., Rivera, and Antcliff, JJ.

(Do Not Publish)




                                                   -12-
