Idowu v. State

• Decision Date: 01 May 2002
• Docket Number: No. 1243-01.,No. 1244-01.,1243-01.,1244-01.
• Parties: Victor Abimbola IDOWU, v. The STATE of Texas.
• Court: Texas Court of Criminal Appeals

73 S.W.3d 918

Victor Abimbola IDOWU, v. The STATE of Texas.

No. 1243-01.

No. 1244-01.

Court of Criminal Appeals of Texas.

May 1, 2002.

Sally G. Goodman, Dallas, for Appellant.

Katherine A. Drew, Asst. DA, Dallas, Matthew Paul, State's Atty., Austin, for State.

OPINION

COCHRAN, J., delivered the opinion of the Court in which KELLER, P.J., MEYERS, WOMACK, HERVEY and HOLCOMB, JJ., joined.

In this case we are asked to decide whether a court of appeals should determine the correct amount of restitution that a defendant must pay as a condition of probation, when the defense argues—at a hearing on a motion for new trial which raises an ineffective assistance of counsel issue—that restitution should never have been ordered in the first place.¹ We conclude that the answer here, where appellant failed to object either when restitution was imposed or in his motion for new trial, is no. Therefore, the Fifth Court of Appeals did not err in concluding that appellant failed to preserve the issue of restitution for appellate review. Idowu v. State, Nos. 05-00-00168-CR & 05-00-00169-CR, 2001 WL 474401 (Tex.App.-Dallas, 2001) (not designated for publication).

Appellant was charged with theft of property valued at more than $1,500, but less than $20,000, and securing execution of documents by deception.² The indictment for securing execution of documents by deception listed some fifty-eight different checks of varying amounts that appellant had allegedly obtained by deception from Chevron. The total value of those checks was $14,522.45.

The testimony at trial showed that appellant managed a Chevron gas station in the Dallas area. Michael Akinsiku was, briefly, an employee at the gas station. After Mr. Akinsiku stopped working, appellant did not notify the payroll department, but instead began to submit false timesheets to Chevron as if Mr. Akinsiku still worked at the gas station. Chevron accordingly sent appellant checks made out to Mr. Akinsiku. Appellant endorsed the checks in Mr. Akinsiku's name and then deposited them in his (appellant's) personal bank account. According to appellant, he then withdrew cash from his account and used it to pay Chevron employees who actually worked the hours that appellant attributed to Mr. Akinsiku. When Mr. Akinsiku applied for work at a different Chevron gas station, Chevron discovered appellant's scheme.

Based upon this evidence, the trial court found appellant guilty of both offenses. At his sentencing hearing, appellant's wife testified to her husband's good character, excellent work habits, and family accomplishments. She, like her husband, contended that appellant had done nothing wrong.³ Accordingly, appellant's attorney asked that appellant

be placed on probation and that he be given the right to a restitution hearing at some subsequent time to determine if indeed he took $14,000 from the Chevron Corporation.

Because we believe in a full hearing on that issue of the amount of restitution owed, if any, that it would show that Chevron corporation was the beneficiary of all those hours and labor at straight time rather than overtime rate and Mr. Idowu derived no financial compensation.

In fact, the defense's position throughout the trial and sentencing was "no harm, no foul." Appellant argued that, because somebody had actually worked the hours at the Chevron station, Chevron had not been harmed by his informal arrangement. Indeed, appellant asserted that Chevron had profited from the arrangement because it did not have to pay overtime to the regular employees who worked Mr. Akinsiku's hours.⁴ Appellant's good intentions notwithstanding, the trial judge sentenced appellant to two years in a state jail facility but probated the sentence for a period of five years. The trial court did not assess any fine, but did order restitution in the amount of $14,522.45. Neither appellant nor his counsel objected at the punishment hearing to the amount of restitution the prosecution sought for the checks appellant fraudulently obtained from Chevron.⁵

Appellant then filed a motion for new trial. He raised only one ground, namely, that his trial counsel provided ineffective assistance by failing to subpoena and sponsor certain Chevron employees who would have testified that they worked extra hours and appellant paid them in cash for doing so. At the hearing on his motion for new trial, appellant called several witnesses, who did indeed testify that they had worked for appellant and that he paid them "straight time" wages in cash for working extra hours. Although appellant's witnesses did "guestimate" how much they were paid, and their aggregate guesses (together with appellant's proffered guesses about absent workers) totaled over $14,000, appellant did not produce any records to substantiate the days or hours worked or monies paid. He did produce his own bank records, which showed only that appellant deposited the Chevron checks made out to Michael Akinsiku in appellant's own account and that appellant withdrew substantial amounts of cash.

At the close of the motion for new trial hearing, defense counsel argued that appellant should be given a new trial.⁶ The defense continued to maintain that appellant was not guilty, and therefore, should not be punished at all.

Before the Dallas Court of Appeals, appellant argued that, because some witnesses at the motion for new trial hearing testified that appellant paid them various different "approximate" sums in cash, "it is necessary to subtract the amount the appellant paid to the employees for working `extra hours' under his overtime reduction scheme." Although appellant's argument served, on one level, as a hint that he would settle for having to repay some lesser restitution, the argument also reflected appellant's continuing contention that he should not have to pay any restitution, because, according to appellant, he paid out all of the money he received from Chevron to Chevron employees.

The court of appeals declined to address the merits of this claim, stating that: "Appellant did not object at trial to the imposition of his conditions of probation. Nor did he raise any complaint about his sentence, including the condition ordering restitution, in his motion for new trial."⁷

The court of appeals is correct. If a defendant wishes to complain about the appropriateness of (as opposed to the factual basis for) a trial court's restitution order, he must do so in the trial court,⁸ and he must do so explicitly.⁹

We ordinarily allow defendants to raise sufficiency of the evidence questions for the first time on appeal. Whether the record provides a sufficient factual basis for a particular restitution order could be considered an evidentiary sufficiency question that need not be preserved by objection at the trial level. In Speth v. State, however, we determined that the imposition of probation conditions, specifically a requirement that a defendant refrain from certain activities, is not appropriate for a sufficiency review.¹⁰

Whether a party must object to preserve an evidentiary sufficiency claim concerning a restitution order, or the amount of restitution, need not be resolved in this case because here, prosecutors offered specific evidence that Chevron suffered a loss equal to the sum of the checks that appellant obtained from Chevron by deception and then deposited in his bank account. That sum was $14,522.45. Thus, there was a factual basis for the amount of restitution the trial court ordered.¹¹ Appellant offered testimonial evidence to dispute the finding of guilt and thus any restitution order,¹² but not until the motion for new trial hearing, and then he did so only to support his ineffective assistance of counsel claim. At the motion for new trial hearing appellant did not allege that his trial attorney was ineffective because he had failed to object to the amount of restitution. Rather, he argued that his trial attorney was ineffective for failing to call appellant's co-workers at the trial itself to offer proof of his innocence. Appellant's motion for new trial and arguments at the hearing on that motion would not have put the trial court on notice that appellant sought, from the trial court, anything less than a new trial, with a new attorney to show his innocence.¹³

In sum, appellant did not preserve any purported error in the accuracy of the restitution order, because he failed to make a specific complaint in the trial court at the time that order was imposed. Moreover, under this record, appellant cannot now attempt to bootstrap his restitution order complaint onto his motion for new trial (which alleged only ineffective assistance of counsel) to avoid the waiver problem. Therefore, we affirm the judgment of the Fifth Court of Appeals.

PRICE, J., filed a concurring opinion.

JOHNSON and KEASLER, JJ., concurred in the result.

PRICE, J., filed an opinion concurring in the judgment of the Court.

The majority concludes that the appellant failed to preserve his complaint about restitution. It goes on to address the merits of the appellant's complaint. The discussion of the merits is obiter dictum and not necessary to the disposition of the case. I concur in the judgment only.

1. We granted the following ground for review:

Should the Dallas court of appeals have decided the proper amount of restitution when the attorney at the hearing on the motion for new trial told the trial court that an issue would be the amount of restitution and the evidence showed that the trial court abused its discretion in ordering $14,522.45 in restitution as a condition of probation?

2. Tex. Penal Code § 32.46.

3. Mrs. Idowu testified, inter alia:

Victor was not doing anything wrong, because he was not keeping that money. Those hours that were worked by the different employees in his store, they worked Michael's [Akinsiku] hours and they were paid for those. Because Chevron asked no overtime, no overtime. Michael wanted his job. He wanted...