NOS CR; CR IN THE COURT OF APPEALS FOR THE FIFTH DISTRICT OF TEXAS AT DALLAS, TEXAS. COURTNI SCHULZ, Appellant. vs.

Transcription

1 NOS CR; CR IN THE COURT OF APPEALS FOR THE FIFTH DISTRICT OF TEXAS AT DALLAS, TEXAS 5th Court of Appeals FILED: 06/26/ :00 Lisa Matz, Clerk COURTNI SCHULZ, Appellant vs. THE STATE OF TEXAS, Appellee On appeal from the Criminal District Court No. 3 of Dallas County, Texas The Honorable Gracie Lewis, Judge Presiding Cause Nos. F J; F J APPELLANT'S BRIEF Counsel of Record: APRIL E. SMITH STATE BAR NO P.O. BOX MESQUITE, TEXAS (FAX) aesmithlaw@tx.rr.com ATTORNEY FOR APPELLANT

2 IDENTITY OF PARTIES AND COUNSEL APPELLANT: TRIAL COUNSEL: APPELLATE COUNSEL: Courtni Schulz Susan Anderson P.O. Box Dallas, TX April E. Smith P.O. Box Mesquite, TX CO-DEFENDANTS: 1. Thomas Alvin Schulz Bruce Kaye, Trial Counsel Robert T. Baskett, Appellate Counsel 2309 Boll Street 2612 Boll Street Dallas, TX Dallas, TX Larry Michelle Schulz Jennifer Balido, Trial Counsel Kathleen Walsh, Appellate Counsel Public Defender s Office 100 Highland Park Village, Suite N. Riverfront Blvd. Dallas, TX Dallas, TX APPELLEE: Craig Watkins, Dallas County Criminal District Attorney 133 N. Riverfront Blvd., LB 19 Dallas, TX TRIAL PROSECUTOR: Amy Croft PRESIDING JUDGE: Gracie Lewis i

3 TABLE OF CONTENTS IDENTITY OF PARTIES AND COUNSEL.... i TABLE OF CONTENTS...ii INDEX OF AUTHORITIES... iii-iv STATEMENT OF THE CASE...1 ISSUE PRESENTED...2 DID THE TRIAL COURT ERR IN ORDERING RESTITUTION WHEN NO EVIDENCE WAS PRESENTED REGARDING THE AMOUNT OF RESTITUTION? STATEMENT OF THE FACTS...2 SUMMARY OF THE ARGUMENT....3 ISSUE PRESENTED, RESTATED....4 PRAYER...8 CERTIFICATE OF SERVICE....9 ii

4 INDEX OF AUTHORITIES CASES PAGE Barker v. State, th 662 S.W.2d 640 (Tex. App. Houston [14 Dist.] 1983, no pet.) Beedy v. State, 250 S.W.3d 107 (Tex. Crim. App. 2008) , 7 Botello v. State, 693 S.W.2d 528 (Tex. App. Corpus Christi 1985, pet. ref d) Campbell v. State, 5 S.W.3d 693 (Tex. Crim. App. 1999)...4 Cartwright v. State, 605 S.W.2d 287 (Tex. Crim. App. 1980) , 6 Garza v. State, 704 S.W.2d 497 (Tex. App. Corpus Christi 1990, pet. ref d) Gonzalez v. State, 954 S.W.2d 98 (Tex. App. San Antonio 1997, no pet.) Hester v. State, 859 S.W.2d 95 (Tex. App. Dallas, 1993, no pet.) Idowu v. State, 73 S.W.3d 918 (Tex. Crim. App. 2002)...5 Lemos v. State, 27 S.W.3d 42 (Tex. App. San Antonio 2000, pet. ref d) Meza v. State, 153 S.W.3d 238 (Tex. App. El Paso 2004, no pet.) Montgomery v. State, 810 S.W.2d 372 (Tex. Crim. App. 1990) iii

5 Sanders v. State, 346 S.W.3d 26 (Tex. App. Fort Worth 2011, pet. ref d) Wallace v. State, 75 S.W.3d 576 (Tex. App. Texarkana 2002, aff d, 106 S.W.3d 103 (Tex. Crim. App. 2003)...6 STATUTES TEX. CODE CRIM. PROC. ANN. art (k) (Vernon 2009) , 7, 8 TEX. PEN. CODE ANN (Vernon 2009)...1 T EX. PEN. CODE ANN (Vernon 2009)...1 iv

6 TO THE HONORABLE COURT OF APPEALS: COMES NOW, Courtni Schulz, Appellant, and respectfully submits this brief urging error in her cases. STATEMENT OF THE CASE In Cause No. F T, Schulz was indicted for the offense of credit card abuse, a state jail felony, in violation of TEX. PEN. CODE ANN (Vernon 2009). (CR-1: 6). 1 In Cause No. F J, Schulz was indicted for the second degree felony offense of theft, a violation of TEX. PEN. CODE ANN (Vernon 2009). (CR-2: 7). This offense was 2 reduced to the state jail felony offense of theft from an elderly person. (RR-2: 66). Schulz pleaded guilty and was placed on five years deferred adjudication community supervision, with fines of $1,000 imposed in each case. (CR-1: 93-94; CR-2: 74-75). Restitution in the amount of $85, was ordered in each case. (CR-1: 93-94; CR-2: 74-75). The trial court granted permission to appeal the amount of restitution ordered. (CR-1: 101; CR-2: 73; RR-10: 19-20). Notices of Appeal were timely filed. (CR-1: 102; CR-2: 82). These cases were heard with that of Schulz s co-defendants, Thomas (Tom) Alvin Schulz (two cases) and Larry Michelle Schulz (three cases), whose cases are also on appeal 1 CR-1" refers to the clerk s record in Cause No. F J. CR-2" refers to the clerk s record in Cause No. F J. 2 See TEX. PEN. CODE ANN (e)(3); (f)(3)(a). 1

7 in Cause Nos CR; CR and CR; CR; and CR, respectively. ISSUE PRESENTED DID THE TRIAL COURT ERR IN ORDERING RESTITUTION WHEN NO EVIDENCE WAS PRESENTED REGARDING THE AMOUNT OF RESTITUTION? STATEMENT OF THE FACTS No testimony was presented at the plea proceeding. (RR-9: 1-9). The only evidence presented was the written judicial confession of Schulz. (CR-1: 87; CR-2: 67; RR-9: 6). The space for restitution is left blank in the plea bargain agreements. (CR-1: 89; CR-2: 70). At sentencing, Beth Shanks, the great niece of the complainant, testified that there were unforgiven credit card balances. (RR-10: 8-11). Shanks did not state the amounts owed. (RR-10: 8-12). The prosecutor stated that there was a civil judgment against the three co-defendants, but the amount of the judgment was not stated. (RR-10: 6-7; 13). At the conclusion of Shanks testimony, the prosecutor failed to present any other evidence regarding restitution. (RR-10: 13). The trial court announced a restitution order of $85, for each defendant. (RR- 10: 18). Trial counsel for each defendant objected to the amount of restitution due to the lack of evidence. (RR-10: 18-19). The objections were overruled but the Court granted permission to appeal the points. (RR-10: 18-20). 2

8 There was a colloquy about an off-the-record discussion where the defendants had no objection to the amount of $44,966.86" for the theft charges and that defense counsel understood that was the amount to be ordered. (RR-10: 18-19). When questioned about the pronouncement of restitution in the amount of $85,506.22, the Court replied, I changed my mind. (RR-10: 16). At the conclusion of the hearing, the Court admonished the defendants that they would have to pay the $85,000" until the Court of Appeals or somebody else says differently. (RR-10: 20-21). SUMMARY OF THE ARGUMENT Schulz contends that there is no evidence to justify the restitution award. No monetary amounts were established at all at the sentencing hearing. Schulz also contends that the proper remedy for this error is to delete the restitution order entirely and not to remand for a new hearing. In this case, deletion of the restitution amount is proper because the State was unprepared to present evidence of restitution and did not present any evidence in support of the request for restitution despite knowing that the sentencing hearing was the proper time to present such evidence. A remand provides the State with a second bite at the apple despite the prosecutor being unprepared at the sentencing hearing and her failure to request a continuance. 3

9 ISSUE PRESENTED, RESTATED DID THE TRIAL COURT ERR IN ORDERING RESTITUTION WHEN NO EVIDENCE WAS PRESENTED REGARDING THE AMOUNT OF RESTITUTION? Standard of Review ARGUMENTS AND AUTHORITIES Challenges to restitution orders are reviewed under an abuse of discretion standard. Cartwright v. State, 605 S.W.2d 287, 289 (Tex. Crim. App. 1980). A court abuses its discretion if it acts in an arbitrary or unreasonable manner. Montgomery v. State, 810 S.W.2d 372, 380 (Tex. Crim. App. 1990). When a court fails to require adequate proof before imposing restitution, it abuses its discretion. Lemos v. State, 27 S.W.3d 42, 45 (Tex. App. San Antonio 2000, pet. ref d); Sanders v. State, 346 S.W.3d 26, 35 (Tex. App. Fort Worth 2011, pet. ref d). Other Relevant Authorities The State has the burden to prove the amount of restitution by a preponderance of the evidence. TEX. CODE CRIM. PROC. ANN. art (k) (Vernon 2009). Assuming for the moment, that the general provisions of Article of the Code 3 of Criminal Procedure apply in non-conviction deferred adjudication cases, any restitution award must be just, and there must be a factual basis for the amount awarded. Campbell 3 This Court has not drawn any distinction between conviction and deferred. See McBryer v. State, No CR (Tex. App. Dallas, 2010, no pet.) (not designated for publication). Nevertheless, the statute almost exclusively speaks of person convicted except in Section (n) where it specifies convicted of or receives deferred adjudication. 4

10 v. State, 5 S.W.3d 693, 696 (Tex. Crim. App. 1999). This at least means that evidence must exist in the record to show that the amount awarded has a factual basis. Idowu v. State, 73 S.W.3d 918, 922 (Tex. Crim. App. 2002); Hester v. State, 859 S.W.2d 95, 97 (Tex. App. Dallas, 1993, no pet.) (relating to restitution for appointed counsel). Application to the Instant Case The State wholly failed to prove the amount of restitution. In fact, there is no evidence of any amount in the record. At the sentencing hearing, the Court noted that the only issue for consideration was the amount of restitution. (RR-10: 6). The prosecutor then mentioned a civil judgment, but did not present a certified copy of said judgment, nor was the amount of the civil judgment mentioned. (RR-10: 6-7). The prosecutor then stated, But as far as the witnesses or testimony about the amounts of restitution, are we doing a hearing right now? I guess I'm unclear. (RR-10: 7). The Court responded, Yes. We are disposing of this case. Everything having to do with this case, we're taking care of today. (RR-10: 7). The prosecutor then called Beth Shanks, the great niece of the complainant. Beth Shanks did not testify to the amount of restitution owed on the credit cards. (RR-10: 8-12). The fact that trial counsel was discussing some amount of restitution as part of an offthe-record discussion/agreement, that was not honored by the trial court is hardly sufficient to prove a factual basis for that amount. Meza v. State, 153 S.W.3d 238, 244 (Tex. App. El Paso 2004, no pet.) (appointed counsel s unsworn acquiescence in the trial court s 5

11 suggestion of an amount); Cartwright, 605 S.W.2d at 289 (the only restitution amounts were in the presentence investigation report). Even if the unsworn remarks of counsel might be some evidence of a possible restitution amount that may be acceptable, those remarks clearly were part of negotiations for an agreement, and should have no impact once the trial court rejected the proposal. Because no evidence was presented regarding the amount of restitution, the trial court abused its discretion in ordering restitution in any amount. In a companion case, the State admitted that it failed to prove the amount of restitution owed. See State s Brief in Thomas Schulz v. State, Cause Nos CR and CR. Remedy Schulz believes the proper course of action is to delete entirely the restitution order from the judgment, rather than remanding the matter for another hearing. This is the better procedure to follow. Wallace v. State, 75 S.W.3d 576, 583 (Tex. App. Texarkana 2002, aff d, 106 S.W.3d 103 (Tex. Crim. App. 2003); Botello v. State, 693 S.W.2d 528, 530 (Tex. App. Corpus Christi 1985, pet. ref d); Garza v. State, 704 S.W.2d 497, 498 (Tex. App. Corpus Christi 1990, pet. ref d); Barker v. State, 662 S.W.2d 640, 642 (Tex. App. Houston th 4 [14 Dist.] 1983, no pet.). In Beedy v. State, 250 S.W.3d 107 (Tex. Crim. App. 2008), the Court of Criminal Appeals explained that remand for a new restitution hearing would be proper where the trial 4 Due process requires that there be a factual basis. Absent such basis, the restitution condition, not just the amount, should be deleted. 6

12 court had lawful authority to impose restitution but abused its discretion as to the amount. Schulz believes that Court was in error on several fronts. First, this is a sufficiency of the evidence question. The State failed in its legislatively mandated burden of proof. At the close of the plea hearing, at which the prosecutor was present, the Court advised Schulz to return for the presentence interview and for the sentencing hearing scheduled for February 2, (RR-9: 7-8). The sentencing hearing was rescheduled for February 10, (RR-10: 1). At that time, the prosecutor was unprepared to present proof of the amount of restitution. (RR-10: 7). She did not present a copy of the civil judgement, she failed to prove the amount of credit card debt outstanding through Beth Shanks. The prosecutor wholly failed to present any evidence in support of the request for restitution. In fact, the prosecutor stated that she was unclear as to whether she was to present witnesses or testimony regarding the amount of restitution owed. (RR-10: 7). The prosecutor did not request a continuance to present the proper evidence to support the amount of restitution she was requesting. (RR-10: 7-8). Because the prosecution was unprepared to present evidence to support the request for restitution at the sentencing hearing, the failure to prove the amount owed was solely due to the prosecutor s mistake. To remand now gives the State an unfair second bite at the apple, and subjects the accused to continued jeopardy. Second, Article does not appear to authorize restitution in deferred adjudication theft-type offenses. Therefore, the Beedy holding that a condition be authorized 7

13 in order to justify remand prevents a new restitution hearing in this case. Article is a specific statute controlling over any general provisions found in Article See Gonzalez v. State, 954 S.W.2d 98, 103 (Tex. App. San Antonio 1997, no pet.). When the legislature drafted Article as it did, requiring conviction except in the specific 5 instance where deferred adjudication was added, the only logical interpretation, wise or not, is that restitution is not authorized in these kinds of cases. Therefore, remand for a new hearing on the issue is not appropriate. The restitution condition should be deleted and the judgment otherwise affirmed. PRAYER WHEREFORE, PREMISES CONSIDERED, Appellant asks this Court to set aside and delete the restitution order in these cases, rather than remand for a new hearing. Respectfully submitted, APRIL E. SMITH STATE BAR NO P.O. BOX MESQUITE, TEXAS (Fax) aesmithlaw@tx.rr.com 5 Article (n), relating to offenses under Section of the Penal Code. 8

14 CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing brief has been served on Craig Watkins, Dallas County Criminal District Attorney, 133 N. Riverfront Blvd., LB-19, Dallas, Texas , by to Michael Casillas, Chief of the Appellate Division, at michael.casillas@dallascounty.org on June 25, APRIL E. SMITH 9