Burt v. State, No. PD–1280–11.

• Court: Court of Appeals of Texas. Court of Criminal Appeals of Texas
• Citation: 396 S.W.3d 574
• Decision Date: 17 April 2013
• Parties: Lemuel Carl BURT, Appellant v. The STATE of Texas.
• Docket Number: No. PD–1280–11.

396 S.W.3d 574

Lemuel Carl BURT, Appellant
v.
The STATE of Texas.

No. PD–1280–11.

Court of Criminal Appeals of Texas.

April 17, 2013.

[396 S.W.3d 575]

Kathleen Walsh, Dallas County Public Defender's Office, Dallas, TX, for Appellant.

Michael J. Sandlin, Assistant District Attorney, Dallas, TX, Lisa C. McMinn, State's Attorney, Austin, for the State.

OPINION
JOHNSON, J., delivered the opinion of the Court in which MEYERS, PRICE, WOMACK, KEASLER, HERVEY, COCHRAN, and ALCALÁ, JJ., joined.

A jury convicted appellant of misapplication of fiduciary property and assessed appellant's punishment at 14 years' incarceration and a $10,000 fine. The trial court orally pronounced this sentence on January 15, 2009, after which the trial court commented to the parties, “The sooner we can get that restitution matter taken care of, the better.” The judgment, dated January 16, 2009, contains a restitution order for $591,785.

Appellant filed a motion for new trial on January 15, 2009, but it was denied. Appellant appealed, arguing that the restitution order must be vacated because the trial court did not orally pronounce restitution in open court, and the written judgment therefore did not properly reflect the orally pronounced sentence. Appellant argued in the alternative that the trial court improperly calculated restitution to include losses from individuals not named in the indictment. The court of appeals held that, under Tex.R.App. P. 33.1(a), appellant had failed to preserve the restitution issues by failing to raise them in the trial court. Burt v. State, No. 05–09–00116–CR, 2011 WL 3211249, at *10 (Tex.App.–Dallas July 29, 2011, pet. granted) (mem. op., not designated for publication).

Because appellant did not have an opportunity to object to the restitution order in the trial court, we find that he could not have preserved the error for review and that the error was therefore not forfeited.¹ We reverse the court of appeals and remand this cause to that court for consideration of the merits of the appellant's restitution claims.

I. Facts

Appellant was accused of operating a Ponzi scheme involving real estate and was charged with misapplication of fiduciary property in an aggregate amount over $200,000. He was represented by appointed counsel. Twenty complainants were

[396 S.W.3d 576]

named in the original indictment, but the trial court later granted the state's motion to strike four of those names. At trial, there was extensive testimony from appellant's alleged victims regarding the amount of money they had lost.

Appellant's trial ended on January 15, 2009. The jury returned a guilty verdict, and the trial court held a punishment hearing. After the jury left the courtroom to deliberate on punishment, the trial judge instructed the state “to prepare a proposed order of restitution in the case, probably with some sort of supporting memorandum to justify whatever number you come up with.” The judge continued, “You can rely on everything that was introduced in the case. We don't need to have a hearing on it as far as an evidentiary hearing, but if y'all can't come up with an agreed figure, then we will have to have a hearing on it at some point in the future, okay? And the sooner, the better.”

The jury sentenced appellant to 14 years' incarceration and a $10,000 fine. The trial judge orally pronounced appellant's sentence in accordance with the jury's verdict and then stated to the parties, “The sooner we can get that restitution matter taken care of, the better.” The docket sheet contains a January 15, 2009 entry that states, “restitution order to follow,” and a January 16, 2009 entry that states, “restitution ordered.” The judgment, dated January 16, 2009, contains a restitution order for $591,785, which corresponds to the total reflected in State's Exhibit 57, a table of twenty named victims and their alleged losses. The record does not reflect when appellant became aware of the restitution order.

At the conclusion of the trial on January 15, 2009, appellant filed a motion for new trial, notice of appeal, and his pauper's oath in order to obtain appointed appellate counsel. On that same day, appellant's motion for new trial was overruled,² and he was appointed appellate counsel.

Appellant appealed, raising five issues, including two issues challenging the restitution order. In issue number four, appellant argued that, “because the trial court failed to hold a restitution hearing and did not impose restitution in open court, the trial court erred by entering an order of restitution in the judgment. The judgment should be reformed to strike the restitution order.” In issue number five, appellant argued that, “only in the alternative to Issue No. 4, the restitution order is flawed and should be remanded to the trial court for a restitution hearing.”

The court of appeals affirmed the judgment, but it did not reach the merits of issues four and five. The court found that appellant failed to preserve those issues for appellate review either by objecting to the court's imposition of restitution or by raising the issue in an amended motion for new trial. Burt v. State, 2011 WL 3211249, at *10.

Appellant filed a petition for discretionary review raising four grounds. The first three grounds challenge the court of appeals's holding on preservation, while the fourth ground challenges the amount of restitution.³

[396 S.W.3d 577]

II. Analysis A. Preservation

Ordinarily, to preserve an issue for appellate review, an appellant must have first raised the issue in the trial court. Tex. Rule App. Proc. 33.1(a); see also Gillenwaters v. State, 205 S.W.3d 534, 537 (Tex.Crim.App.2006) (discussing Rule 33.1). A sentencing issue may be preserved by objecting at the punishment hearing, or when the sentence is pronounced. See, e.g., Idowu v. State, 73 S.W.3d 918, 923 (Tex.Crim.App.2002) (appellant failed to preserve error as to restitution amount by failing to object at the punishment hearing to amount of restitution sought by the prosecution); Russell v. State, 341 S.W.3d 526, 527–28 (Tex.App.–Fort Worth 2011, no pet.) (appellant failed to preserve Eighth Amendment complaint when he did not object at sentencing). In some instances, an appellant may preserve a sentencing issue by raising it in a motion for new trial. See, e.g., Bitterman v. State, 180 S.W.3d 139, 142–43 (Tex.Crim.App.2005) (appellant raised issue of plea breach in motion for new trial).⁴

The requirement that an objection be raised in the trial court assumes that the appellant had the opportunity to raise it there. See Hardeman v. State, 1 S.W.3d 689, 690 (Tex.Crim.App.1999) (appellant did not allege that he did not have an opportunity to object when sentence was pronounced and so failed to preserve error); Issa v. State, 826 S.W.2d 159, 161 (Tex.Crim.App.1992) (permitting appellant to raise his objection for the first time in a motion for new trial since “appellant had no opportunity to object to the trial court's action until after that action was taken.”). Thus, when an appellate court finds that error has not been preserved, it will often recite the times at which the appellant had the opportunity to object, but failed to do so. See, e.g., Idowu v....