No. 01-14-00900-CR

In the 

Court of Appeals 

For the 

First Judicial District of Texas 

At Houston 



No. 1344231 

In the 180th District Court of

Harris County, Texas 



FELICITY BURRIS

Appellant 

v. 

THE STATE OF TEXAS

Appellee



STATE’S APPELLATE BRIEF



DEVON ANDERSON

District Attorney 

Harris County, Texas 

CARLY DESSAUER

Assistant District Attorney 

WILLIAM T. EXLEY, JR. 

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

CLERK

 FILED IN 1st COURT OF APPEALS HOUSTON, TEXAS 5/13/2015 11:18:48 AM CHRISTOPHER A. PRINE Clerk
ii

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 THE 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 Attorney 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 Evans
iii

TABLE OF CONTENTS

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 included 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......................................................................................... 15
iv

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

TEX. CODE CRIM. PROC. ANN. art. 42.037(a) (West Supp. 2014)..................................... 5

TEX. CODE CRIM. PROC. ANN. art. 42.037(b)(1)(B) (West Supp. 2014).......................... 6

TEX. CODE CRIM. PROC. ANN. art. 42.037(c) (West Supp. 2014) ................................ 6, 9

TEX. CODE CRIM. PROC. ANN. art. 42.037(e) (West Supp. 2014) ..............................6, 11

TEX. CODE CRIM. PROC. ANN. art. 42.037(h) (West Supp. 2014).................................... 5

TEX. CODE CRIM. PROC. ANN. art. 42.037(k) (West Supp. 2014) .................................... 6

TEX. CODE CRIM. PROC. ANN. art. 42.12, §11(b) (West Supp. 2014).............................. 5

TEX. PENAL CODE ANN. §28.02(a) (West 2011) ................................................................ 5
v

RULES

TEX. R. APP. P. 9.4(g)............................................................................................................. ii

TEX. R. APP. P. 9.4(i). ........................................................................................................... 14

TEX. R. APP. P. 38.2(a)(1)(A)................................................................................................. ii

TEX. R. APP. P. 39.1................................................................................................................ ii
1

TO THE HONORABLE COURT OF APPEALS:

STATEMENT OF THE CASE

Appellant was charged with arson (CR at 16). She entered a plea of no contest

(CR at 46-48, 53-54). The trial court deferred appellant’s adjudication and placed her

on community supervision for five years (CR at 53-54). Appellant was ordered to pay 

$25,851 in restitution as an 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 no 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 accepted this agreement, and placed appellant on community 

supervision for five years (CR at 53-54). 

The 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, the 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). The building had been gutted by 

the fire, and while the exterior walls were standing, they were cracked (1 RR at 13). 
2

James testified that the exterior walls “cannot be used for a future building” and 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 property, 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 cheaper to maintain the 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 was certain “without a doubt” that the 

building would have to be demolished (1 RR at 18-19).

Since the building had been catastrophically destroyed 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 due 
3

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 value 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 provided the trial court with two affidavits 

attesting to her financial situation and a third mentioning 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 proceedings (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 requirements 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 for the costs of the Houston Police Department

securing the smoldering property immediately after the arson (1 RR at 67-68, 78).

SUMMARY OF THE ARGUMENT

The trial court did not abuse its discretion when including the cost of 

demolishing the remains of the catastrophically destroyed building in the amount of 

restitution appellant should pay as a condition of her community supervision because 
4

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 destroyed 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, the 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. Crim. App. 1980); Drilling v. 

State, 134 S.W.3d 468, 469 (Tex. App.—Waco 2004, no pet.). An abuse of discretion 

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 a 
5

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 offense of arson if she starts a fire with the intent to 

destroy or damage the property of another either with the knowledge that the fire is 

located on property belonging to another or that the fire has located within it property 

belonging to another. TEX. PENAL CODE ANN. §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. TEX. CODE CRIM. PROC. ANN. art. 42.037(a) (West Supp. 

2014). The court may also impose upon a defendant placed on community 

supervision the requirement that the defendant pay restitution. TEX. CODE CRIM.

PROC. ANN. art. 42.037(h) (West Supp. 2014); TEX. CODE CRIM. PROC. ANN. 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 by the victim as a result of the offense 
6

while the defendant has the burden of demonstrating her financial resources, financial 

needs, and dependents. TEX. CODE CRIM. PROC. ANN. 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.” TEX. CODE CRIM. PROC. ANN. art. 42.037(c) (West Supp. 2014). When 

the court calculates the amount 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 property on the date of sentencing, less the value of any part of the 

property that is returned. TEX. CODE CRIM. PROC. ANN. 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.” TEX. CODE CRIM. PROC.

ANN. 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 paid 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, the 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 pay 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 

State’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 that 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, James described how the building was 

“destroyed,” “gutted,” and was “a catastrophic loss;” he explained to the court how 

the complainant was only able to rent the parking lot of the property because the 

building was unusable in its current state (1 RR at 12-13, 36, 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 acknowledged that the decision 

regarding what to do with the building had not yet been made, but his testimony 
8

made clear that the complainant faced a choice between clearing the property of the 

destroyed building alone or rebuilding a new building on the property 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 factually 

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, despite 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 carefully

considering what to do with the structure given that 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 enriched the complainant by 

ordering appellant to cover the cost. However, in making this argument, appellant 
9

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 testified 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 logical 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 stated 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 complainant 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 to 
10

“[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, 49 (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 future medical expenses incurred by a victim connected to his

offense; however, the issue of whether the future medical expenses were factually 

supported by the record was not raised directly on appeal). Similarly, 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. State, 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 Court 

deleted the amount from Simpson’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 included the cost of tearing down the remaining structure destroyed by 
11

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 restitution order must be “as fair as possible to the victim” of the 

offense, the court included all of the direct costs arising out of appellant’s offense. See 

TEX. CODE CRIM. PROC. ANN. 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 TEX. CODE CRIM. PROC. ANN. art. 

42.037(b)(1)(B) (West Supp. 2014) (“If the offense results in [the] destruction of 

property of a victim of the offense, the 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 would have been 

worth well over $250,000 before the fire and informing the trial court of the 

substantial 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 court may have considered the evidence appellant presented 

regarding her financial situation and her dependent when ordering appellant to pay 

the lowest amount of restitution for the loss sustained by the complainant (Def. Ex. 

1). Indeed, the court acknowledged at 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 amount 
12

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 minimal in light of the loss 

suffered by the complainant. With appellant paying $12,146 in restitution for the cost 

of tearing down the 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 unjustifiably 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 indicates that the court considered the evidence introduced at the 

hearing that put into question appellant’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

The State of Texas respectfully urges the Court to overrule appellant’s point of 

error and affirm the trial court’s restitution order.

DEVON ANDERSON

District Attorney

Harris County, Texas

/s/ Carly Dessauer

____________________________________________________________________________________________________________________________________________________________________________________

CARLY DESSAUER

Assistant District 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.net
14

CERTIFICATE OF COMPLIANCE

The undersigned attorney certifies that this computer-generated document has 

a word count of 3,089 words, based upon the representation provided by the word 

processing program that was used to create the document. TEX. R. APP. P. 9.4(i). 

/s/ Carly Dessauer

____________________________________________________________________________________________________________________________________________________________________________________

CARLY DESSAUER

Assistant District Attorney

Harris County, Texas

1201 Franklin, Suite 600

Houston, Texas 77002

(713) 755-5826

State Bar No. 24069083
15

CERTIFICATE OF SERVICE

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 77008

tomlafon@aol.com

/s/ Carly Dessauer

____________________________________________________________________________________________________________________________________________________________________________________

CARLY DESSAUER

Assistant District Attorney

Harris County, Texas

1201 Franklin, Suite 600

Houston, Texas 77002

(713) 755-5826

State Bar No. 24069083

Date: May 13, 2015