Campbell v. State

• Decision Date: 10 November 1999
• Citation: 5 S.W.3d 693
• Parties: (Tex.Crim.App. 1999) ROY LYNN CAMPBELL, JR., Appellant v. THE STATE OF TEXAS NO. 552-97
• Court: Texas Court of Criminal Appeals

Page 693

5 S.W.3d 693 (Tex.Crim.App. 1999)

ROY LYNN CAMPBELL, JR., Appellant v. THE STATE OF TEXAS

NO. 552-97

IN THE COURT OF CRIMINAL APPEALS OF TEXAS, EN BANC.

November 10, 1999

ON STATE'S PETITION FOR DISCRETIONARY REVIEW FROM THE FOURTEENTH COURT OF APPEALS HARRIS COUNTY

[Copyrighted Material Omitted]

Before the court en banc.

WOMACK, J., delivered the opinion of the Court in which MCCORMICK, P.J., KELLER, PRICE, HOLLAND, and KEASLER, JJ., joined, and in parts I, II, III, and V of which MEYERS, MANSFIELD, and JOHNSON, JJ., joined. JOHNSON, J., filed a concurring opinion, in which MEYERS AND MANSFIELD, JJ., joined.

I. Procedural History

The appellant pleaded no contest to theft by deception of property valued at $20,000 or more but less than $100,000. Tex. Penal Code 31.03 (e)(5)(B).¹ The trial court sentenced the appellant to ten years confinement and recommended restitution as a condition of parole. The amount of restitution the trial court recommended was $100,000.

The Fourteenth Court of Appeals upheld the conviction but overturned the restitution recommendation. The court struck the restitution amount as an excessive award that was an abuse of discretion by the trial court. The appeals court held that the $100,000 restitution recommendation exceeded the parameters of the offense because the property-value range for second-degree felony theft was more than $20,000 and less than $100,000. Campbell v. State, 942 S.W.2d 738, 740-741 (Tex. App.-Houston [14th Dist.] 1997). The State argues that the property-value range for theft affects only the punishment but does not limit the restitution amount. We granted the State's petition for discretionary review to resolve the issue.

The appeals court found that the restitution recommendation also violated the requirements of Texas Code of Criminal Procedure article 42.01, section 1(25)² because the names of the victims to whom the restitution was to be paid were not stated in the judgment.³ Id. The appeals court remanded the case to the trial court for a determination of the proper amount of restitution as well as the beneficiaries and division of the restitution recommendation. Id.

II. Restitution as a Parole Condition

The State claims that the remand order was beyond the power of the Court of Appeals because only the Board of Pardons and Paroles could decide the amount of restitution, if any, the appellant might have to pay. Under this argument, the remand order violated the separation of powers between the courts and the executive branch.

The trial court did not order restitution as a part of the appellant's punishment. The State is correct that under the law in effect at the time of the appellant's offense, see Dix & Dawson, 42 Texas Practice: Criminal Practice and Procedure section 38.132 (1995), the restitution order was a recommendation to the Board of Pardons and Paroles. Article 42.18, section 8(g)⁴ authorized a parole panel to include as a condition of parole any condition that a court may have imposed on a probationer under article 42.12.⁵ Under the statute, it was the responsibility of the Board, not that of the trial court, to set the amount of restitution as a condition of parole within the figure initially established by the district court. See, e.g., Vargas v. State, 830 S.W.2d 656, 658-59 (Tex. App.-Houston [1st Dist.] 1986, pet. ref'd) (interpreting article 42.18, section 8(g) to limit the power of the trial court over the Board on a separation-of-powers rationale).

The reference of article 42.18, section 8(g) to article 42.12, section 11(a) leads us to examine the validity of restitution as condition of parole in the same manner as we would the validity of restitution as a condition of probation. Although the trial court did not have the authority to require restitution as a condition of parole,⁶ the amount of restitution that is just was fixed by the trial court and may have been used by the parole panel in ordering restitution as a condition of parole. Cf. Cartwright v. State, 605 S.W.2d 287, 289 (Tex. Cr. App. 1980) (delineating a just amount of restitution as a condition of probation). Therefore, the propriety of the amount of restitution as a parole condition under the former article 42.12, section 11(a)(8) was within the jurisdiction of the appeals court and is amenable to our review without implicating separation-of-powers concerns.⁷

III. Limits on Restitution Orders

Because the Court of Appeals held that the trial court abused its discretion in recommending a restitution amount above the property-value range for second-degree felony theft, we examine the limits of a trial court's discretion in ordering restitution. An abuse of discretion by the trial court in setting the amount of restitution will implicate due- process considerations.

The amount of restitution must be just, and it must have a factual basis within the loss of the victim. See Cartwright v. State, 605 S.W.2d 287, 289 (Tex. Cr. App. 1980) (holding that due process requires that evidence in the record must exist to show that the amount has a factual basis); Thompson v. State, 557 S.W.2d 521, 525-26 (Tex. Cr. App. 1977) (striking a restitution order because the record did not show that the injuries of the victim justified the restitution amount). The appellant stipulated to the amounts that he stole from his victims. The evidence shows that the total monetary loss for nine of the eleven named complainants was $108,324.56. The amount of restitution that the trial court recommended the appellant pay as a condition of parole had a factual basis in the record.

A trial court may not order restitution for an offense for which the defendant is not criminally responsible. Gordon v. State, 707 S.W.2d 626, 629-30 (Tex. Cr. App. 1986) (holding that it would be a denial of due process to order the defendant to pay for costs associated with an offense for which he was found not criminally responsible). Here the appellant stipulated to a list of his victims and the amounts that he had stolen from them. There is no dispute that the appellant was criminally responsible for the thefts to which he pleaded no contest.

Another limit on the authority of a trial court to order restitution is that a trial court may not order restitution to any but the victim or victims of the offense with which the offender is charged. Martin v. State, 874 S.W.2d 674, 679-80 (Tex. Cr. App. 1994) (holding that a restitution order may not compensate all victims of a general scheme to defraud when the defendant was only charged with defrauding one investor). Nor may a trial court, without the agreement of the defendant,⁸ order restitution to other victims unless their losses have been adjudicated.⁹ Ex parte Lewis, 892 S.W.2d 4, 6 (Tex. Cr. App. 1994) (citing Martin, 874 S.W.2d at 677-78). The restitution recommendation of the trial court in the appellant's case did not attempt to compensate any persons other than the direct victims of the appellant's theft.

However, the judgment did not designate which of his victims were to receive restitution, nor did the judgment specify how the award was to be divided among those victims. The judgment violated article 42.01, section 1(25), which directs that the judgment must reflect the apportionment and beneficiaries of any restitution order. We uphold the remand of the case by the Court of Appeals as to the determination of the appropriate division of the restitution recommendation between the victims of the appellant.

IV. Property-Value Range of Theft as a Limit on Restitution

The appellant now calls for this Court to create a new limit on restitution orders. The appellant argues that the amount of restitution that can be ordered for a theft conviction is restricted by the upper limit of the property-value range of theft for which the appellant was convicted. The Court of Appeals struck the trial court's restitution recommendation as an abuse of discretion because it exceeded the "parameters of the verdict." Campbell, 942 S.W.2d at 740-41. The court reasoned that second-degree felony theft by definition involves stolen property valued at less than $100,000, so a restitution recommendation in excess of that amount would have been permissible only if the appellant had been charged with first-degree felony theft. Id. at 740. We shall reverse.

The Court of Appeals cited two cases in support of its decision to overturn the restitution recommendation, Green v. State, 880 S.W.2d 797 (Tex. App.-Houston [1st] 1994, no pet.), and Hefner v. State, 735 S.W.2d 608 (Tex. App.-Dallas 1987, pet. ref'd). Green involved a sufficiency challenge to a restitution order. In upholding the restitution amount, Green cited Hefner for the requirement that restitution must be "within the parameters of the verdict." Green, 880 S.W.2d at 802. The Green court referenced by that phrase Hefner's requirement that a restitution order may not exceed the property-value range for the offense of which the jury found a defendant guilty. See Hefner, 735 S.W.2d at 614.

In Hefner, the defendant was convicted of third-degree felony theft. Hefner, 735 S.W.2d at 614. The jury found that the defendant was guilty of theft of more than $750 and less than $20,000. Id. But the trial court ordered restitution of $35,500. Id. at 613. The appeals court struck the restitution order as outside the property-value range for third-degree felony theft although a factual basis existed in the record for the $35,500 order. Id. at 614. The court relied upon our holding in Gordon, 707 S.W.2d at 629-30, to support its decision. Id. at 613-14.

In Gordon, the defendant was a former Harris County Deputy Sheriff who was ordered to pay restitution that covered the victim's funeral expenses. Gordon, 707 S.W.2d at 628. The victim died of injuries inflicted on him during a custodial interrogation. Id. Gordon was found guilty of violating the civil rights of a prisoner, but the jury found that he had not contributed to...