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No. 03-15-00043-CR

IN THE COURT OF APPEALS 

FOR THE THIRD JUDICIAL DISTRICT OF 

TEXAS AT AUSTIN, TEXAS 

********

KODY BROXTON 

VS. 

THE STATE OF TEXAS 

********

ON APPEAL FROM THE 264th DISTRICT COURT 

OF BELL COUNTY, TEXAS 

Cause No. 71838 

******

STATE’S BRIEF and MOTION TO DISMISS 

******

 HENRY GARZA 

 DISTRICT ATTORNEY 

 BOB D. ODOM 

 ASSISTANT DISTRICT ATTORNEY 

 P.O. Box 540 

 Belton, Tx 76513 

 (254) 933-5215 

 FAX (254) 933-5704 

 DistrictAttorney@co.bell.tx.us 

 SBA No. 15200000 

Oral Argument Not Requested 

ACCEPTED

03-15-00043-CR

4863353

THIRD COURT OF APPEALS

AUSTIN, TEXAS

4/13/2015 1:37:20 PM

JEFFREY D. KYLE

CLERK

 FILED IN 3rd COURT OF APPEALS AUSTIN, TEXAS 4/13/2015 1:37:20 PM JEFFREY D. KYLE Clerk
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TABLE OF CONTENTS

ITEM PAGE

Index of Authorities .......................................................................... 3

Statement Regarding Oral Argument ............................................. 5

Statement of the Case ....................................................................... 5

Motion to Dismiss Appeal ................................................................ 6

Facts ........................................................................................ 6

Argument ............................................................................... 7

Statement of Facts ........................................................................... 8

Summary of State’s Argument ........................................................ 10

Argument and Authorities .............................................................. 11

Issue on Appeal ..................................................................... 11

TRIAL COURT ABUSE DISCRETION IN 

ORDERING PAYMENT OF RESTITUTION 

NOT REQUESTED BY VICTIM OR STATE?

Standard of Review .................................................... 11

Application and Analysis ........................................... 11

Prayer .............................................................................................. 20

Certificate of Compliance with Rule 9 ........................................... 20

Certificate of Service ....................................................................... 21
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INDEX OF AUTHORITIES

CASES PAGE

Cartwright v. State, 605 S.W.2d 287 ................................................ 11-12

(Tx. Cr. App. 1980)

Dears v. State, 154 S.W.3d 610 ......................................................... 7

(Tx. Cr. App. 2005)

Hanna v. State, 426 S.W.3d 87 ................................................ 13-14, 16, 18

(Tx. Cr. App. 2014)

James v. Commission for Lawyer Discipline, 310 S.W. ...................... 17-18

3d 598 (Tx. App. Dallas 5th Dist. 2010 no writ)

In the Matter of M.H., 662 S.W. 2d 764 .............................................. 15-16

(Tx. App. Corpus Christi 13thDist. 1983 no writ.)

Montgomery v. State, 810 S.W.2d 372 .............................................. 11

(Tx. Cr. App. 1991)

Shankle v. State, 119 S.W. 3d 808 ...................................................... 7-8

(Tx. Cr. App. 2003)

Velez v. State, No. 04-11-00563-CR, 2012 Tex. App. ........................ 7

LEXIS 6486 (Tx.App. San Antonio 4th District 2012 no. pet.), 

not designated for publication.

OTHER

Texas Code of Criminal Procedure

Article 1.26 ................................................................................. 13

Article 42.037 ..................................................................... 14, 16-18

Article 42.037(a) ....................................................................... 12-13
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Texas Family Code

Section 54.04(d)(1)(D) ............................................................. 16

Texas Rules of Appellate Procedure

Rule 25.2 .................................................................................... 7

Rule 25.2(a)(2) .......................................................................... 8

Texas Rules of Civil Procedure............................................................. 15

Texas Rules of Disciplinary Procedure ................................................ 17
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STATEMENT REGARDING ORAL ARGUMENT

The State does not request oral argument.

STATEMENT OF THE CASE

The Appellant, Kody Lee Broxton, was charged by indictment with 

two counts of theft of metal casings of a value of less than $20,000.00 

from Kevin Canfield, the owner. (CR-4). He entered a plea of guilty. 

(RR2-6). 

Although the court and the Appellant stated in court that there 

was no plea bargain with the State (RR2-7) and the trial court later so 

certified (CR-27), the Written Plea Agreement signed by the Appellant 

and approved by his counsel, the State and the court indicated that the 

State agreed to recommend that the sentence in this case would run 

concurrent with the sentences in three other cases (CR-19). The trial 

court noted that the State and defense has “struck a deal” that all of the 

sentences would run concurrently and not be stacked. (RR3-56). The 

court followed that agreement. (RR3-58).

The trial court found the Appellant guilty and assessed 

punishment at 2 years in State Jail and ordered payment of restitution in 

the amount of $30,000.00. (CR-54; RR3-56, 57). 
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The Appellant filed motions for new trial (CR-39, 46) which were 

apparently overruled by operation of law. He gave timely notice of 

appeal (CR-29) and the trial court certified his right to do so. (CR-27). 

MOTION TO DISMISS APPEAL

FACTS

In this case the State did not make a recommendation as to the 

specific number or years to which the Appellant would be sentenced;

however, it did agree to recommend that the sentence “run concurrent” 

with the sentences in three additional cases, cause numbers 73,310, 

73,309, and 73,3111 (CR-19). This agreement was signed and 

acknowledged to be true and correct by the Appellant (CR-24, 25). It 

was also approved by his counsel (CR-25), and by the State (CR25), and 

by the trial court. (CR-26). 

Although during the hearing the court stated that there was no 

plea bargain and the Appellant agreed (RR2-7), at the time of sentencing 

the trial court stated:

“(THE COURT): you have, it appears from looking at the

 plea papers, struck a deal with the State through your

 lawyer that they would all run concurrently with each 

 other as opposed to doing these individually and being

 stacked.” (RR3-56).

 

1 These three cases are now before this court in Cause Numbers 73309, 73310 and 73311.
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In keeping with the agreement the court then sentenced the Appellant 

“to run concurrently”. (RR3-57). The written judgment of the trial court 

also specifically provided that the sentence in this cause would run 

concurrently with cause numbers 73309, 73310, and 73311. (CR-48).

Nevertheless, in its Certificate of Defendant’s Right to Appeal the 

trial court stated that this was not a plea bargain case. (CR-27).

Argument and Motion

An appellate court must compare the certification of the right to 

appeal with the record and, where the certificate is in error, act 

accordingly. Dears v. State, 154 S.W. 3d 610, 615 (Tx. Cr. App. 2005).

Where the State agreed to concurrent sentences in the underlying case 

and two companion cases there was a “charge bargain” that constituted 

a plea bargain. Velez v. State, No. 04-11-00563-CR, 2012 Tex. App. LEXIS 

6486 (Tx. App. San Antonio 4th Dist. 2012, no pet.), not designated for 

publication. Charge bargaining affects punishment as it effectively caps 

punishment at the maximum sentence for the charge and is an 

agreement as to punishment under Rule 25.2 of the Texas Rules of 

Appellate Procedure. Shankle v. State, 119 S.W.3d 808, 812-13 (Tx. Cr. 

App. 2003).
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Rule 25.2(a)(2) limits the right of the defendant of appeal in a plea 

bargain case, where the agreement is followed, to matters raised by 

written pretrial motions or with the permission of the trial court. 

In this case there was a written agreement that the sentence was 

be served concurrently with those in the three companion cases. The 

trial court expressly recognized the existence of that agreement and 

followed its terms, effectively capping the sentence in the case. There 

was a plea bargain and the trial court’s certificate was in error. 

Accordingly this court is without jurisdiction to consider this appeal and 

the State respectfully moves the court to dismiss the appeal for want of 

jurisdiction. Shankle at 814.

 

STATEMENT OF FACTS

The sole issue on appeal is whether or not the trial court has the 

discretion to order the payment of restitution where the victim and the 

State do not request it. The Appellant does not contest the amount of 

restitution and the facts of the case are, therefore, not pertinent to the 

issue before the court. Thus, the State will recite only those facts 

pertaining to that issue.
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During the punishment hearing, the victim named in the 

indictment, Kevin Canfield, testified that he was the human resources 

manager for Delta Centrifugal company in Temple, Texas and that his 

business had been victimized by a series of thefts of valuable high grade 

metals. (RR3-6, 7). Canfield had apprehended the Appellant and two codefendants in the act of stealing the metal. (RR3-8-10).

After testifying about the value of the lost metal, Canfield was

asked by the Appellant’s counsel about restitution and responded: “I 

don’t believe we are asking the Court for restitution. We are asking 

punishment and jail time.” (RR3-19). 

Robert Rose, the president of Delta Centrifugal, was asked if he 

was interested in the Appellant paying the money back. He said “I don’t 

know that he really has the means to pay it back. I’m more interested in 

doing jail time for the theft.” (RR3-22). Later, Mr. Rose clarified his 

position. “If I thought he really had the means, I would probably seek 

restitution. But I don’t really believe that he has the means. I have no 

basis of that but I just don’t feel like that’s a possibility”. (RR3-25).

The Appellant, however, testified that he fully expected to pay 

restitution and make everything right (RR3-31) and promised to seek a 

second job in order to do it. (RR3-32).
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During his argument on punishment, Appellant’s counsel urged 

the court to determine the amount of restitution based upon the 

evidence. (RR3-53).

State’s counsel, in urging the court to reject the Appellant’s plea 

for community supervision, made the statement that he should pay for 

what he had done, not with restitution, but with his freedom for two 

years in State Jail and noted that no one at Delta Centrifugal was asking 

him to pay them back. (RR3-54, 55). 

The trial court included in its oral pronouncement of sentence 

(RR3-56, 57) and its written judgment (CR-48) that the Appellant pay 

restitution in the amount of $30,000.00. 

SUMMARY OF STATE’S ARGUMENT

The statements by the victim and counsel for the State do not 

constitute a waiver of restitution but merely an expression of a 

preference for the Appellant to serve jail time for the offense. An order 

imposing restitution is within the sound discretion of the trial court and 

the court may order it paid regardless of a request by the victim or the 

State and such an order is not an abuse of discretion. Nothing in the 

statute requires a request from the victim or acquiescence by the State 
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in order to impose restitution. The Appellant does not contest either 

the amount of the restitution order or the identity of the victim of the 

offense.

ARGUMENT AND AUTHORITIES

First Issue on Appeal

Did the trial court abuse its discretion in ordering the payment of 

restitution to the victim even though it was not requested by the victim 

or by the State?

Standard of Review

Restitution orders are reviewed under an abuse of discretion 

standard. Cartwright v. State, 605 S.W.2d 287, 289 (Tx.Cr.App. 1980). A 

trial court abuses its discretion only when its decision is arbitrary, 

unreasonable, or is outside the zone of reasonable disagreement. 

Montgomery v. State, 810 S.W.2d 372, 391, 391 (Tx. Cr. App. 1991).

Application and Analysis

The Appellant contends that both the victim and the State have 

waived the imposition of restitution and, therefore, the trial court 

abused its discretion in ordering its payment. He concludes that this is 

apparently a case of first impression.
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His basic premise is based first upon the characterization of the 

victim and State’s statements as waivers. The victims quite clearly 

stated that they were not asking the court to order restitution because 

they doubted the Appellant’s ability to pay it and were most interested 

in sending a message about thefts from their business through the 

imposition of jail time. The State’s statement in argument to the court 

was in keeping with these expressed concerns and, in rebuttal to the 

Appellant’s plea for community supervision, indicated that the State was 

more interested in jail time than in restitution. These preferences were 

not waivers at all as they were based on doubts as to whether or not the 

Appellant could or would ever pay restitution and upon the contention 

that jail time was more important. 

However, even if the victim and the State were considered to have 

waived any claims to restitution, the question remains as to whether or 

not the trial court still has the discretion to order it. A decision to order 

the payment of restitution is within the sound discretion of the trial 

court. Cartwright at 289. Is that discretion abused merely because the 

victim or the prosecutor may not seek it for whatever reason?

Article 42.037(a), Texas Code of Criminal Procedure, provides that 

the court that sentences a defendant may order the defendant to make 
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restitution to any victim of the offense. The statute, by its wording, 

leaves that decision to the discretion of the court. There is no 

requirement that the victim demand it or assert his or her right to it, nor 

does it give the State the right to waive restitution. 

In Hanna v. State, 426 S.W.3d 87 (Tx. Cr. App. 2014), the Court of 

Criminal Appeals while dealing with another issue, recently wrote 

concerning the nature of restitution. Restitution is a form of 

punishment, but it also serves multiple purposes including the

restoration of the victim to the status quo and the forcing of the offender 

to address and remedy the specific harm he has caused. The restitution 

statute provides the trial court with great discretion in effectuating 

opportunities for the rehabilitation of criminals, deterring future harm 

and compensating victims efficiently. The trial judge has discretion 

under Article 42.037(a) to order restitution to any victim of the offense. 

Hanna at 91-92. 

In interpreting a statue the court must look first to the plain 

language of the statute in order to effectuate the intent or purpose of the 

legislature in enacting the statute. The Code of Criminal Procedure is to 

be liberally construed to achieve the purpose of the legislature in 

preventing, suppressing and punishing crime. Article 1.26, Texas Code of 
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Criminal Procedure. The legislature intended restitution to adequately 

compensate the victim of the offense in the course of punishing the 

offender. Society is benefitted by such punishment that includes 

restitution. Hanna at 91, 92. 

The plain language of Article 42.037 states that the trial court may 

order the payment of restitution to any victim of the offense. “May” 

clearly indicates discretion to do so. There is nothing in the statute to 

the effect that the victim must request or demand it or that the State can 

waive a victim’s right to it. 

The victim clearly expressed a desire to see the Appellant sent to 

State jail to send a message to others who might contemplate theft from 

his business. (RR3-24). Restitution as part of the punishment is in 

keeping with that objective and the intention of the legislature to 

prevent, suppress and punish crime and to rehabilitate the Appellant as 

well as deter future harm. 

The trial court’s order for the payment of restitution was well 

within its discretion. The Appellant assured the court that he could and 

would pay restitution and his counsel asked the court to determine a 

restitution amount from the evidence. Although they were apparently 
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hoping for community supervision, that hope does not negate their plea

that restitution be imposed. 

The Appellant does not contest the amount of restitution imposed 

nor that Delta Centrifugal was the victim. The opinions of the victim 

and the prosecutor that the Appellant would never be able to pay it and 

that jail time was more important are not controlling as to the trial 

court’s exercise of its reasonable discretion.

The Appellant attempts to distinguish two cases from this one 

because they involve different statutes allowing the imposition of 

restitution; however those cases are nevertheless instructive.

In The Matter of M.H., 662 S.W.2d 764 (Tx. App. Corpus Christi 13th

Dist. 1983 no writ), the juvenile appellant contended that the trial 

court’s order for the payment of restitution was improper because there 

was no specific request for restitution in the pleadings asking that she 

be found a child in need of rehabilitation. Thus, she argued, the 

judgment did not conform to the pleadings as required by the Texas 

Rules of Civil Procedure. The court of appeals, however, held that the 

Texas Family Code provided for the order of restitution upon a finding 

that the child is in need of rehabilitation and that the protection of the 

public and the child requires disposition. That being the case, the 
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pleadings for such a finding permitted the ordering of restitution. M.H. 

at 766.

While In the Matter of M.H. did not involve Article 42.037, but 

rather Section 54.04(d)(1)(D) of the Family Code, it is nevertheless 

analogous. Section 54.04(d)(1)(D) allows the juvenile court to impose 

restitution upon a finding of a child in need of rehabilitation. Article 

42.037 provides that the court that sentences a convicted defendant 

may order restitution to any victim. That victim need not be named in 

the charging instrument under 42.037. Hanna at 96. Thus, just as in 

M.H., the conviction of a criminal offense carries the consequence that 

restitution may be imposed at the discretion of the court. That order is 

not dependent upon the pleadings. 

The Appellant also notes that M.H. focuses on the imposition of 

restitution rather than what he characterizes as “the unequivocal 

waiver” of restitution in this case. As noted above, he presupposes that 

an expression by the victim and the State that they are more concerned 

with sending a message by the imposition of jail time as opposed to 

restitution he is unlikely to pay is a waiver. The State again contends 

that such is not the case. The Appellant also distinguishes the case 

because the restitution in M.H. was initially imposed when the juvenile 
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was placed on probation; however, the order was only contested after 

that probation was revoked for failure to pay it. 

In James v. Commission for Lawyer Discipline, 310 S.W.3d 598 (Tx. 

App. Dallas 5th Dist. 2010 no writ), the appellant complained of the 

commission’s order for the payment of restitution when the pleadings 

had only requested judgment that the appellant be disciplined and the 

commission have such other relief to which it is entitled. The Court of 

Appeals noted that the Rules of Disciplinary Procedure provide that 

sanctions may include restitution and the pleadings were sufficient to 

include the order. The Court noted that the fact that the appellant 

would be required to make restitution if the commission prevailed was 

a “foreseeable consequence” of the allegations and requested relief. The 

Court found no authority preventing a court from imposing restitution if 

the commission did not explicitly request it in the pleadings. James at 

609, 610. 

Again, James does not interpret Article 42.037, however the 

principles upon which it was based are similar. Article 42.037 expressly 

provides that the court imposing sentence may order restitution to any 

victim. Therefore, such an order is a foreseeable consequence of 

conviction. Contrary to the Appellant’s assertion, there was not a 
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specific request for restitution in the commission’s pleading in James 

(Appellant’s Brief at pg. 7). The lack of such a specific request was the 

basis for that portion of the appeal. It also must be noted that Article 

42.037 no less defines restitution as a foreseeable consequence of 

conviction than the rules define it as a consequence of sanctions. 

The Appellant’s assertion that no statute specifically permits the 

imposition of restitution when there was no request for it or where it 

was affirmatively waived (Appellant’s Brief at pg. 8) is misleading. 

Article 42.037 grants the trial court the discretion to order the payment 

of restitution to any victim upon conviction. That discretion is not 

conditioned upon a request from the victim nor does it indicate that the 

victim or the State can remove the court’s discretion by waiver.

The purpose of the statute giving the trial court discretion, while 

certainly including the compensation of the victim for the harm 

suffered, also contemplates effectual opportunities to rehabilitate the 

offender and to deter future harm. Punishment, including restitution, 

not only is intended to compensate the victim, but also to benefit 

society. Hanna, supra. Article 42.037 gives the trial court the discretion 

to impose restitution. It does not abuse that discretion by doing so 

merely because the victim and the State see little use in it based upon 
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doubts about the possibility of payment and the desire to see jail time 

assessed. While those wishes certainly may be considered, it is 

respectfully submitted that they are not necessarily controlling and the 

court may consider all aspects of the case in exercising that discretion. 

The opinions of the victim and the prosecutor did not constitute a 

waiver at all, much less an unequivocal one. The trial court also had 

before it the Appellant’s own promises that he could and would make 

things right by paying the restitution and his counsel’s request that the 

court determine an amount of restitution to be paid from the evidence.

The order for the payment of restitution was neither arbitrary, nor 

outside the scope of reasonable disagreement.
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PRAYER

The State of Texas respectfully moves that this appeal be 

dismissed for want of jurisdiction or, in the alternative, prays that the 

judgment of conviction herein be, in all things, be affirmed.

Respectfully Submitted,

HENRY GARZA

District Attorney

/s/ Bob D. Odom

BOB D. ODOM

Assistant District Attorney

P.O. Box 540

Belton, Tx 76513

(254) 933-5215

FAX (254) 933-5704

DistrictAttorney@co.bell.tx.us

SBA No. 15200000

CERTIFICATE OF COMPLIANCE WITH RULE 9

This is to certify that the State’s Brief is in compliance with Rule 9 

of the Texas Rules of Appellate Procedure and that portion which must be 

included under Rule 9.4(i)(1) contains 2,821words.

/s/ Bob D. Odom

BOB D. ODOM

Assistant District Attorney
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CERTIFICATE OF SERVICE

This is to certify that a true and correct copy of this brief has been 

served upon, Ken Mahaffey, Counsel for Appellant, by electronic transfer

via Email, addressed to him at Ken_Maffey@yahoo.com on this 13th day 

of April, 2015.

/s/ Bob D. Odom

BOB D. ODOM

Assistant District Attorney