No. 01-14-009 00

- CR In the Court of Appeals For the First Judicial District of Texas

At Houston  No. 1344231 In the 18 0th District Court of Harris County, Texas
 

### F ELICITY 

### B URRIS Appellant
v. 

### T HE 

### S TATE OF 

### T EXAS Appellee
 STATE’S APPELLATE BRIEF
 D EVON A NDERSON District Attorney Harris County, Texas C ARLY D ESSAUER Assistant District Attorney W ILLIAM T. E XLEY , J R . Assistant District Attorney Harris County, Texas 1201 Franklin, Suite 600 Houston, Texas 77002 Tel.: 713/755-5826 Fax No.: 713/755-5809 ORAL ARGUMENT REQUESTED ONLY IF REQUESTED BY APPELLANT ACCEPTED 01-14-00900-cr FIRST COURT OF APPEALS

HOUSTON, TEXAS 5/13/2015 11:18:48 AM CHRISTOPHER PRINE

CLERKii STATEMENT REGARDING ORAL ARGUMENT Pursuant to Texas Rule of Appellate Procedure 9.4(g) and Texas Rule of Appellate Procedure 39.1 , the State requests oral argument only if appellant requests oral argument.

IDENTIFICATION OF TH E PARTIES Pursuant to Texas Rule of Appellate Procedure 38.2( a)(1)(A) , a complete list of the names of all interested parties is provided below.
Counsel for the State:
Devon Anderson

 District Attorney of Harris County Carly Dessauer

 Assistant District A ttorney on appeal William T. Exley, Jr.

 Assistant District Attorney at trial Appellant or criminal defendant: Felicity Burris Counsel for Appellant: Tommy LaFon

 Attorney at trial and on appeal Trial Judge:
Hon. Catherine Evansiii TABLE OF CONTEN TS STATEMENT REGARDING ORAL ARGUMENT

................................ .................... ii IDENTIFICATION OF THE PARTIES

................................ ................................ ......... ii TABLE OF AUTHORITIES

................................ ................................ ............................. iv STATEMENT OF THE CASE

................................ ................................ .......................... 1 STATEMENT OF FACTS

................................ ................................ ................................ .. 1 SUMMARY OF THE ARGUMENT

................................ ................................ ................. 3 REPLY TO APPELLANT’S POINT OF ERROR

................................ ......................... 4 I. The trial court did not abuse its discretion when ordering appellant to pay $12,146 in restitution to the complainant for the costs of demolishing the catastrophically destroyed building.

................................ ................................ ................ 4

a. Trial court did not abuse its discretion when it inc luded the cost of demolishing the building because the costs were supported by the record.

................................ ................................ ................................ ........................... 7 b. The trial court did not abuse its discretion in ordering appellant to pay restitution for the structure’s demolition even though it had not occurred because the record established that the complainant would incurr the cost

. ................................ ................................ ................................ ............. 8

c. The trial court did not abuse its discretion in assessing the cost of demolishing the remaining structure because its order was just.

........................ 10 CONCLUSION

................................ ................................ ................................ ................... 13 CERTIFICATE OF COMPLIANCE

................................ ................................ .............. 14 CERTIFICATE OF SERVICE

................................ ................................ ......................... 15iv TABLE OF AUTHORITIES CASES Cabla v. State , 6 S.W.3d 543 (Tex. Crim. App. 1999)

................................ ................................ ............. 5 Campbell v. State , 5 S.W.3d 693 (Tex. Crim. App. 1999)

................................ ............................... 5, 6, 7, 11 Cantrell v. State , 75 S.W.3d 503 (Tex. App.

— Texarkana 2002, pet. ref’d)

................................ .............. 5 Cartwright v. State , 605 S.W.2d 287 (Tex. Crim. App. 1980)

................................ ................................ ......... 4 Drilling v. State , 134 S.W.3d 468 (Tex. App.

— Waco 2004, no pet.)

................................ ............... 4, 5, 7 Gonzalez v. State , 117 S.W.3d 831 (Tex. Crim. App. 2003)

................................ ................................ ......... 4 LaFleur v. State , 848 S.W.2d 266 (Tex. App.

— Beaumont 1993, no pet.)

................................ ............. 10 Lemos v. State , 27 S.W.3d 42 (Tex. App.

— San Antonio 2000, pet. ref’d)

................................ .......... 10 Simpson v. State , 772 S.W.2d 276 (Tex. App.

— Amarillo 1989, no pet.)

................................ ................ 10
STATUTES T EX
. C ODE C RIM
. P ROC
. A NN . art. 42.037(a) (West Supp. 2014)

................................ ..... 5 T EX
. C ODE C RIM
. P ROC
. A NN . art. 42.037(b)(1)(B) (West Supp. 2014)

.......................... 6 T EX
. C ODE C RIM
. P ROC
. A NN . art. 42.037(c) (West Supp. 2014)

................................ 6, 9 T EX
. C ODE C RIM
. P ROC
. A NN . art. 42.037(e) (West Supp. 2014)

.............................. 6, 11 T EX
. C ODE C RIM
. P ROC
. A NN . art. 42.037(h) (West Supp. 2014)

................................ .... 5 T EX
. C ODE C RIM
. P ROC
. A NN . art. 42.037(k) (West Supp. 2014)

................................ .... 6 T EX
. C ODE C RIM
. P ROC
. A NN . art. 42.12, §11(b) (West Supp. 2014)

.............................. 5 T EX
. P ENAL C ODE A NN . §28.02(a) ( West 2011)

................................ ................................ 5v

RULES T EX
. R. A PP
. P. 9.4(g)

................................ ................................ ................................ ............. ii T EX
. R. A PP
. P . 9.4(i).

................................ ................................ ................................ ........... 14 T EX
. R. A PP
. P. 38.2( a)(1)(A)

................................ ................................ ................................ . ii T EX
. R. A PP
. P. 39.1

................................ ................................ ................................ ................ ii1

TO THE HONORABLE COURT OF APPEALS:
STATEMENT OF THE CAS E Appellant was charged with arson (CR at 1 6 ). Sh e entered a plea of no contest (CR at 46

- 48, 53

- 54

). Th e trial court deferred appellant’s adjudica tion and placed her on community supervision for five years (CR at 53

- 54 ). Appellant was ordered to pay $25, 8 51 in restitution as a n amended condition of her community supervision ( 1 RR

at 68 ; CR at 56 ). The court certified appellant’s right to appeal its restitution order , and appellant filed a timely notice of appeal (CR at 63

- 64 ).

STATEMENT OF FACTS Appellant pleaded n o contest to arson and accepted a plea agreement with the
State that capped her punishment at five years deferred adjudication (CR at 46

- 47).
The trial court acce pted this agreement, and placed appellant on community supervision for five years ( CR at 53

- 54).
T he trial court held a hearing to determine the amount of restitution appellant should pay as a condition of her community supervision (1 RR). James Zoe, th e son of the complainant, testified at the hearing and informed the court that the building on the property from which appellant operated her business, Late Nite Pies, was catastrophically destroyed by the arson (1 RR at 8, 9, 11, 12 ). The building could not be occupied or used since the fire (1 RR at 12

- 13). T he building had been gutted by
the fire , and w hile the exterior wa lls were standing, the y were crack ed (1 RR at 13).2

James testified that the exterior walls “cannot be used for a future building” a nd noted
that there was “no way” to use them (1 RR at 13). After the fire, the complainant had to pay $2,200 for cleaning up debris, $1,000 for securing the building in accordance with requirements of the City of Houston, $200 for locks to secure the prop erty, and $1,450 for boarding up the building (1 RR
at 15

- 18). At the time of trial, the building had not yet been torn down because the complainant was gathering information regarding what to do with the property , and James found it c heaper to maintain th e boarded up structure than it would have been to take care of an empty lot ( 1 RR at 46

- 47 ). However, James had obtained a quote from a demolition company regarding what it would cost to take down the gutted

structure , $12,146, and testified that he wa s certain “without a doubt” that the building would have to be demolished (1 RR at 18

- 19). Since the building had been catastrophically destroy ed by the fire, the loss was covered by a $250,000 insurance policy (1 RR at 20). However, the insurance
company deducted $8,855 to cover the costs that the company paid directly to the Houston Police Department for securing the building after the fire before sending the remaining amount , $241,145, to the complainant (1 RR at 23

- 24). However , the complainant had to pay income taxes for over $68,000 on the insurance proceeds as the structure was a complete loss (1 RR at 26, 28, 29, 34, 35

- 36). James testified that if the complainant would have sold the property as it was before the fire, he expected the market value to be a lot more than $250,000, but due3

to the difference between market value and the depreciation of the building, which had been built in the 1920s, the most money the complainant could get from an insurance policy was $250,000 (1 RR at 22 , 37 ). The va lue of the land had increased since the fire, but had the building not been a total loss from the fire, the property would have been worth even more with the intact building (1 RR at 38, 39). Also at the hearing, appellant p rovided the trial court w ith two affidavits attesting to her financial situation and a third mention ing her health problems (1 RR at 57; Def. Ex. 1, 2 , 3 ). In her own affidavit, appellant informed the court that she was going through bankruptcy proceeding s (Def. Ex. 1). After hearing this evidence, the trial court ordered appellant to pay $25,851 in
restitution based on the facts that the complainant had to pay $2,200 for cleaning up debris from public property, $1,000 for securing the building after the fire in accordance with requirement s of the City of Houston, $200 for locks to secure the property, $1,450 for boarding up the building after the fire , $12, 146 for demolishing
the damaged walls , and $8,855 f or the costs of the Houston Police Department

se curing the smo ldering property immediately after the arson (1 RR at 67

- 68, 78).

SUMMARY OF THE ARGUM ENT
The trial court did n ot abuse its discretion when including the cost of demolishing the remains of the catastrophically destroyed building in the amount of restitution appellant should pay a s a condition of her community supervision bec ause4

the record factually established the amount and need for the cost and the trial court ’ s restitution order was just

.

REPLY TO APPELLANT’S POINT OF ERROR
I. The trial court did not abuse its discretion when ordering appellant to pay $12,146 in restitution to the complainant for the costs of demolishing the catastrophically destro yed building
. The trial court did not abuse its discretion when including $12 ,146 for the cost of demolishing the destroyed structure in the amount of restitution appellant has to pay as a condition of her community supervision. The amount and need for the cost was supported by the record , as was evidence regarding appellant’s inability to pay the actual loss sustained by the complainant because of the arson

. Because the trial court did not abuse its discretion, t he court’s restitution order should be upheld.
Standard of Review Challenges to restitution orders are reviewed under an abuse

- of

- discretion
standard. Cartwright v. State , 605 S.W.2d 287, 288

- 89 (Tex. Cr im. App. 1980) ; Drilling v.
State , 134 S.W.3d 468 , 469 (Tex. App.

— Waco 2004, no pet. )

. An abuse of discret ion occurs when a trial court’s decision is so clearly wrong that it lies outside the “zone of reasonable disagreement.” Gonzalez v. State , 117 S.W.3d 831, 839 (Tex. Crim. App. 2003) ; Drilling

, 134 S.W.3d at 469

- 70

. A trial court is given broad discretion when granting restitution. Drilling , 134
S.W.3d at 470

. However, due process requires three restrictions on the restitution a5

trial court may order: (1) the amount must be just and supported by a factual basis within the record, (2) the restitution ordered must be only for the offense for which the defendant is criminally responsible, and (3) the restitution ordered must be proper only for the victim or victims of the offense with which the offender is charged. Campbell v. State , 5 S.W.3d 693, 696

- 97 (Tex. Crim. App. 1999) ; Drilling , 134 S .W.3d at
469

- 70 ; Cantrell v. State , 75 S.W.3d 503, 512 (Tex. App.

— Texarkana 2002, pet. ref’d) ;

see Cabla v. State , 6 S.W.3d 543, 546 (Tex. Crim. App. 1999)

. Applicable Law A person commits the offens e of arson if she start s a fire with the intent to destroy or damage the property of another either with the know ledge that the fire is located on property belonging to another or that the fire has located within it property belonging to another

. T EX
. P EN AL C ODE A NN . §28.02 (a) ( West 2011 )

. Article 42.037(a) of the Code of Criminal Procedure allows the trial court that
sentences a defendant to an offense to order that defendant to make restitution to the
victim of the offense. T EX
. C O DE C RIM
. P ROC
. A NN . art. 42.037 (a) (West Supp.
2014 )

. The court may also impose upon a defendant placed on commun ity supervision the requirement that the defendant pay restitution. T EX
. C ODE C RIM
. P ROC
. A NN . art. 42.037 (h) (West Supp. 2014 ) ; T EX
. C ODE C RIM
. P ROC
. A NN . art.
42.12 , §11(b) (West Supp. 2014 )

. When a court determines the amount of restitution, the State bears the burden of demonstrating the amount of loss sustained b y the victim as a result of the offense6

while the defendant has the burden of demonstrating her financial resources, financial needs, and dependents. T EX
. C ODE C RIM
. P ROC
. A NN . art. 42.037 (k) (West Supp. 2014)

. In determining the amount of restitution, the court must consider “the amount of loss sustained by any victim” and “other factors the court deems appropriate.” T EX
. C ODE C RIM
. P ROC
. A NN . art. 42.037 (c) (West Supp. 2014 )

. When
the court calculates the amo unt of restitution for an offense that resulted in the damage or destruction of property that is impossible to return , the court may order the defendant to pay the value of the property on the date of the destruction, or the value of the p roperty on the date of sentencing, less the value of any part of the property that is returned. T EX
. C ODE C RIM
. P ROC
. A NN . art. 42.037 (b)(1)(B) (West Supp. 2014

)

. The court’s order of restitution must be “as fair as possible to the
victim” of the defendant’s offense but also must be “ just. ” T EX
. C ODE C RIM
. P ROC
. A NN . art. 42.037 (e) (West Supp. 2014 ) ; Campbell

, 5 S.W.3d at 696

. Analysis
The trial court did not err when it included the cost of demolition for the destroyed structure in the amount of restitution appellant had to pay as a condition of her community supervision even though the complainant had not yet p aid that cost because the amount and need for the cost was factually supported by the record . As the trial court ordered appellant to pay limited amount of restitution for the complainant’s expenses directly arising out of appellant’s offense of arson, th e trial
court did not abuse its discretion.7

a. Trial court did not abuse its discretion when it included the cost of demolishing the building because the costs were supported by the record. Firstly, the amount of restitution the court ordered appellant to pa y for the cost of demolishing the burnt building was factually supported by the record. See Campbell , 5 S.W.3d at 696 ; Drilling

, 134 S.W.3d at 469

- 70

. As the record shows, the $12,146 for demolition costs was discussed during James testimony as well as documented in
St ate’s Exhibit 3 (1 RR at 18

- 19; State’s Ex. 3). James testified that Cherry Demolition had provided an estimate for the costs of tearing down the exterior walls , removing the debris, and clearing the lot (1 RR at 18

- 19). James informed the trial
court th at the estimate was lower than he expected to get if he obtained a new estimate at the time of the hearing but assured the court that he expected the destroyed structure to be demolished “[w]ithout a doubt” (1 RR at 19). Indeed, in his other testimony , Jam es describ ed how the building w as “destroyed , ” “gutted,” and was “a catastrophic loss ; ” he explain ed to the court how the complainant was only able to rent the parking lot of the prope rty because the building was un usable in its current state (1 RR at 12

- 13, 3 6, 37, 43, 46) . While James testified that the four walls of the building were standing, he told the court that they
were cracked , that they “could not be used for a future building , ” and that there was “no way to use those walls” (1 RR at 13). James ack nowledged that the decision regarding what to do with the building had not yet been made, but his testimony8

made clear that the complainant faced a choice between clear ing the property of the destroyed building alone or rebuilding a new building on the pro perty which would also require demolition of the existing structure ( 1 RR at 13, 18

- 19, 42, 46 )

. Because the record established that the complainant would have to pay to demolish the remaining walls and documented that the cost for that work would be at least $12,146, the trial court did not abuse its discretion in assessing appellant with a condition of community supervision that included paying $12,146 in restitution for the cost of demolition that was supported by the record. As the amount was factual ly supported by the record, the trial court did not abuse its discretion.
b. The trial court did not abuse its discretion in ordering appellant to pay restitution for the structure’s demolition even though it had not occurred because the record established that the complainant would incur the cost . Secondly, d espite the fact that the cost of demolition was factually supported by the record , appellant points to the fact that the demolition

— and its expense

— had not yet occurred and to James’ testimony that the complainant was careful ly considering what to do with the structure given t hat the building had been grandfathered out of new code restrictions as reasons for why the trial court abused its discretion (1 RR at 18

- 19, 47). Appellant claims that since this cost had not yet occurred, it was not a loss and the trial court unjustly e nriched the complainant by
ord ering appellant to cover the cost. However, in making this argument, appellant9

overlooks the evidence in the record supporting the trial court’s ruling that the costs
would be incurred

. Mentioned above, the court heard James explain that the walls of the structure were cracked and “could not be used for a future building” because of the fire (1 RR at 13). He asserted that the demolition costs would eventually occur “without a doubt” (1 RR at 19). James further testifi ed that while the demolition had not
occurred because the complainant was exploring what to do with the property, “ a new building will be put up. It is just we are not sure of what options we have, so we are trying to get these options and then make l ogical decisions and go forward ” (1 RR at 47). Given his testimony, the trial court did not abuse its discretion in determining that the work would occur. Indeed, the trial court even sta ted on the record that it
believed that “the demolition work is a direct consequence of the arson. It is just like if somebody broke a window getting into a house, whether you sweep it up now or eventually, it has to be done” (1 RR at 67). Even though co mplainant had not yet paid the cost, it was certain that the complainant would have to pay for the gutted
structure to be demolished for at least $12,146. Thus, the trial court did not abuse its discretion in including the amount in its restitution order. Additionally, the trial court did not err in ordering appellant to pay restitution for a cost that had not yet been incurred by the complainant as other courts have assessed such “future costs” in their restitution orders. For example, the Forth Court
of Appeals upheld a trial court’s restitution order requiring the defendant to10

“[s]ubsidize the decedent’s family due to loss of income” for a total of $21,205

. Lemos
v. State , 27 S.W.3d 42, 4 9 (Tex. App.

— San Antonio 2000, pet. ref’d)

. The Court in
Lemos stated that “the lost earnings of the [complainant] were a proper subject of the
restitution order. Lemos , 27 S.W.3d at 49 ; see also LaFleur v. State , 848 S.W.2d 266, 268 (Tex. App.

— Beaumont 1993, no pet.) (noting that the court ordered LaFleur to pay for the present and futu re medical expenses incurred by a victim connected to his offense; however, the issue of whether the future medical expenses were factually
suppor ted by the record was not raised directly on appeal) . Simil arly, in Simpson v.
State , the Seventh Court noted that the trial court was within its discretion to order the defendant to pay restitution for the complainant’s future psychological counseling and medical costs if supported by the record. Simpson v. Stat e , 772 S.W.2d 276, 279

- 80 ( Tex. App.

—

Amarillo 1989, no pet.) . However, as the record did not provide any factual support for the amount of restitution set by the court, the Seventh Cour t deleted the amount from S impson ’s restitution order. Simpson , 772 S.W.2d at 280

. This case is distinguishable from Simpson in that the amount of restitution the court ordered appellant to pay is supported in the record. As such the trial court did not
abuse its discretion.

c. The trial court did not abuse its discretion in assessing the cost of demolishing the remaining structure because its order was just
. Finally, the trial court did not abuse its discretion in ordering appellant to pay
restitution that incl uded the cost of tearing down the remaining structure destroyed by11

the fire because the amount of restitution was just to both the complainant and appellant. See Campbell

, 5 S.W.3d at 696 (“The amount of restitution must be just.”).
As the court’s res titution order must be “as fair as possible to the victim” of the offense, the court included all of the direct costs a rising out of appellant’s offense. See
T EX
. C ODE C RIM
. P ROC
. A NN . art. 42.037 (e) (West Supp. 2014) . However, the trial court did not require appellant to pay an amount close to the value of the building before it was destroyed by her arson. See T EX
. C ODE C RIM
. P ROC
. A NN . art.
42.037 (b)(1)(B) (West Supp. 2014) ( “ If the offense results in [ the] destruction of property of a victim of the offense, th e court may order the defendant [

... ] to pay an amount equal to the greater of the value of the property on the date of the [

... ]
destruction

. ” ). Despite testimony from James that the building w ould have been worth well over $250,000 before the fire and informing the trial court of the
substan tial amount of income tax the complainant had to pay because the building

was catastrophically destroyed by the fire, the trial court ordered appellant to pay a fraction of its vale in restitution ( 1 RR at 22 , 26, 27, 37 ). While not explicitly stated on the record, the trial c ourt may have considered the evidence appellant presented regarding her financial situation and her dependent w hen ordering appellant to pay the lowest amount of restitution for the loss sustained by the complainant (Def. Ex. 1) . Indeed, the court acknowled ged a t the conclusion of the hearing that appellant’s
restitution was minimal for her offense when the court told appellant, “to be on deferred for arson for torching somebody’s building and having a restitution amount12

of $25,000, is quite low” (1 RR at 68 ). The court’s words may indicate that it wanted appellant to be aware that her restitution order was m inimal in light of the loss suffered by the complainant. With appellant paying $12,146 in restitution for the cost of tearing down th e remaining burnt structure instead of an amount near the value of the building, the trial court did not abuse its discretion in ordering a just amount

. Furthermore, its restitution order would not cause the complainant, who lost a building worth well over the $250,000, to be unju stifiably enriched by having the expense of the building’s demolition covered by appellant ’ s restitution. Because the trial court’s restitution order justly covers the complainant’s direct
expenses but yet i ndicates that the court considered the evidence introduced at the hearing th at put into question a ppellant ’ s ability to pay a substantial amount , the trial
court did not abuse its discretion

. As such, this Court should uphold its restitution order and overrule appellant’s sole point of error.13 CONCLUSION T he State of Texas respectfully urges the Court to overrule appellant’s point of
error and affirm the trial court’s restitution order

. D EVON A NDERSON District Attorney Harris County, Tex as
/s/ 

# Carly Dessauer

________ _____________________________________________________________________________________________________________________________ _______________________________________________ C ARLY D ESSAUER Assistant Distric t Attorney Harris County, Texas 1201 Franklin, Suite 600 Houston, Texas 77002 (713) 755

- 5826 State Bar No. 24069083 dessauer_carly@dao.hctx.net curry_ alan@dao.hctx.net14 CERTIFICATE OF COMPL IANCE The undersigned attorney certifies that this computer

- generated document has
a word count of 3 ,0 89 words, based upon the representation provided by the word processing program that was used to create the docume nt. T EX
. R. A PP . P . 9.4(i).

/s/ 

# Carly Dessauer

_______________________________________________________________________ _______________________________________________________ ______________________________________________________ C ARLY D ESSAUER Assistant District Attorney Harris County, Texas 1201 Franklin, Suite 600 Houston, Texas 77002 (713) 755

- 5826 State Bar No. 2406908315 CERTIFICATE OF SERVI CE The State will serve a copy of the foregoing instrument to appellant’s attorney though TexFile: Tommy LaFon Attorney at Law 1244 Heights Blvd. Houston , Texas 77 00 8 tomlafon @ aol.com
/s/ 

# Carly Dessauer

_____________________________________________________________________ __ _____________________________________________________________________________________________________________ C ARLY D ESSAUER Assistant District Attorney Harris County, Texas 1201 Franklin, Suite 600 Houston, Texas 77002 (713) 755

- 5826 State Bar No. 24069083

Date: May 13, 2015