Opinion issued December 6, 2016

In The

Court of Appeals 

For The 

First District of Texas 

————————————

NO. 01-15-00880-CR

———————————

FRANK ORTEGON, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 21st District Court

Washington County, Texas

Trial Court Case No. 16973

O P I N I O N

A jury convicted appellant, Frank Ortegon, of the first-degree felony offense 

of aggravated robbery and, after appellant pleaded true to the allegations in two 
2

enhancement paragraphs, assessed his punishment at forty years’ confinement.1 In 

one issue, appellant contends that the trial court improperly required him to pay 

restitution to the complainant because the jury did not specify restitution as part of 

his sentence in its punishment verdict. Appellant requests that this Court modify his 

judgment of conviction to delete the restitution requirement. 

We affirm.

Background

On October 10, 2013, the complainant, Tenola Washington, was working at 

an Exxon station in Chappell Hill, Texas. Around 11:00 p.m., after all of the 

customers and the cashier had left, Washington locked the store and began cleaning. 

Washington believed he was alone in the store at that time, but when he walked 

down the hall, a man, later identified as appellant, jumped out of a room carrying a 

gun. Appellant pointed the gun at Washington and demanded his wallet, which had 

about $300 dollars in it, his cell phone, and his keys. Appellant also forced his way 

into the office of the store, but Washington did not know whether appellant took any 

money or anything else from the office. Appellant tied Washington’s hands with 

duct tape, put a bag over his head, and left him in a back room of the store. After 

tying Washington up, appellant called an unknown individual, and Washington later 

 

1 See TEX. PENAL CODE ANN. § 29.03(a)(2) (West 2011).
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heard two other people, in addition to appellant, talking inside the store. Washington 

waited for about forty-five minutes until he could no longer hear anyone else in the 

store and then he removed the bag from his head and walked down the street, while 

still tied up, to his boss’s son’s house to tell him about the robbery. Officers later 

arrested appellant, along with several accomplices, for this offense.

The jury ultimately convicted appellant of the robbery and, after appellant 

pleaded true to the allegations in two enhancement paragraphs, assessed his 

punishment at forty years’ confinement.2 The punishment charge did not ask the 

jury about restitution to the complainant, and the jury did not award restitution in its 

punishment verdict.

When the trial court orally pronounced appellant’s sentence, in addition to 

stating the length of appellant’s confinement, the amount of credit for time served, 

and the requirement that appellant pay court costs, the court also stated that the 

written judgment of conviction “will also include a requirement for payment of $300 

in restitution for the cash money that was stolen from the victim, Tenola 

Washington.” The trial court then advised appellant of his appellate rights and asked 

if appellant had any questions. Appellant asked about the possibility of an appeal 

 

2 On appeal, appellant does not challenge the jury’s guilty verdict or its punishment 

verdict.
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bond. Neither appellant nor his trial counsel objected to the trial court’s imposing a 

restitution requirement.

The written judgment included a requirement that appellant pay $300 in 

restitution to the complainant. Appellant did not file a post-judgment motion 

challenging the propriety of this requirement. This appeal followed.

Propriety of Restitution Order

In his sole issue, appellant contends that the trial court improperly required 

him to pay restitution to the complainant because he elected to have the jury assess 

his punishment, and the jury did not impose a restitution requirement in its 

punishment verdict.3 Appellant thus argues that the restitution order is void and that 

this Court should modify the judgment of conviction to delete this requirement.

We review challenges to restitution orders for an abuse of discretion. See 

O’Neal v. State, 426 S.W.3d 242, 246 (Tex. App.—Texarkana 2013, no pet.). Code 

 

3 The State argues that appellant failed to preserve this complaint for appellate review 

by failing to object to the restitution requirement. “If a defendant wishes to 

complain about the appropriateness of (as opposed to the factual basis for) a trial 

court’s restitution order, he must do so in the trial court, and he must do so 

explicitly.” Idowu v. State, 73 S.W.3d 918, 921 (Tex. Crim. App. 2002); see TEX.

R. APP. P. 33.1(a) (providing general preservation of error requirements). Here, 

appellant challenges the appropriateness of, not the factual basis for, the trial court’s 

restitution order. When the trial court orally pronounced appellant’s sentence, it 

expressly stated that it was imposing a restitution requirement. Appellant did not 

object at this time. The written judgment of conviction also contained a restitution 

requirement. Appellant did not file a motion for new trial or other post-judgment 

motion challenging this requirement. By failing to either object or file a postjudgment motion challenging the propriety of the restitution requirement, appellant 

failed to preserve this complaint for appellate review. See Idowu, 73 S.W.3d at 921.
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of Criminal Procedure article 42.037 authorizes a trial court to award restitution to 

the victim of a criminal offense and provides:

In addition to any fine authorized by law, the court that sentences a 

defendant convicted of an offense may order the defendant to make 

restitution to any victim of the offense . . . . If the court does not order 

restitution or orders partial restitution under this subsection, the court 

shall state on the record the reasons for not making the order or for the 

limited order.

TEX. CODE CRIM. PROC. ANN. art. 42.037(a) (West Supp. 2015) (emphasis added). 

Article 42.037 also directs the trial court, when determining whether to order 

restitution and the amount of restitution, to consider “the amount of the loss 

sustained by any victim” and “other factors the court deems appropriate.” Id. art. 

42.037(c). The State bears the burden of “demonstrating the amount of the loss 

sustained by a victim as a result of the offense.” Id. art. 42.037(k).

The Court of Criminal Appeals has held that restitution “is a victim’s statutory 

right.” Burt v. State, 445 S.W.3d 752, 756 (Tex. Crim. App. 2014); Hanna v. State, 

426 S.W.3d 87, 91 (Tex. Crim. App. 2014) (“Restitution is not only a form of 

punishment, it is also a crime victim’s statutory right.”). In Burt, the court described 

several purposes that restitution orders serve:

First, it restores the victim to the “status quo ante” position he was in 

before the offense. Second, restitution serves as appropriate 

punishment for the convicted criminal. We have said, “[a]s 

punishment, restitution attempts to redress the wrongs for which a 

defendant has been charged and convicted in court.” Third, because 

restitution forces the offender to “address and remedy the specific harm 

that he has caused,” it aids in the rehabilitation process as “it forces the 
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defendant to confront, in concrete terms, the harm his actions have 

caused.” Fourth, restitution acts as a deterrent to crime. Indeed, the 

law so favors crime victims’ compensation that our restitution statute 

requires the trial judge to justify his decision not to order restitution to 

a crime victim. Further, the statute provides that a parole panel “shall 

order the payment of restitution ordered” under Article 42.037, and it 

may revoke a defendant’s parole or mandatory supervision if he fails to 

comply with the trial judge’s restitution order.

445 S.W.3d at 756–57 (internal citations omitted); Hanna, 426 S.W.3d at 91 (“The 

legislature intended restitution to ‘adequately compensate the victim of the offense’ 

in the course of punishing the criminal offender.”) (quoting Cabla v. State, 6 S.W.3d 

543, 545 (Tex. Crim. App. 1999)). Due to these purposes, courts interpret restitution 

statutes “liberally to effectuate fairness to the victims of crime.” Burt, 445 S.W.3d 

at 757; see Hanna, 426 S.W.3d at 91 (“A broad interpretation of the restitution 

statutes provides judges with ‘greater discretion in effectuating opportunities for 

rehabilitating criminals, deterring future harms, and efficiently compensating 

victims.’”).

Due process places three limitations on the restitution that a trial court may 

order: (1) the restitution ordered must be only for the offense for which the defendant 

is criminally responsible; (2) the restitution must be only for the victim or victims of 

the offense for which the defendant is charged; and (3) the amount must be just and 

supported by a factual basis in the record.4 Burt, 445 S.W.3d at 758; Campbell v. 

 

4 Although appellant challenges only the propriety of the trial court’s awarding 

restitution in the absence of a jury finding on restitution, to the extent appellant also 
7

State, 5 S.W.3d 693, 696–97 (Tex. Crim. App. 1999). “[F]or purposes of the 

restitution statute, a ‘victim’ is any person who suffered loss as a direct result of the 

criminal offense,” and this “includes the notion of both actual and proximate 

causation.” Hanna, 426 S.W.3d at 94–95.

Here, appellant argues that the trial court improperly ordered restitution 

because he elected to have the jury assess punishment and restitution is a form of 

punishment, but the jury did not include a restitution finding in its punishment 

verdict. Appellant contends that, as a result, the trial court’s restitution order exceeds 

the jury’s punishment verdict and is therefore void. Appellant requests that this 

Court delete the restitution requirement from the judgment of conviction.

Appellant acknowledges that article 42.037 states that the trial court may 

order the defendant to make restitution, but he argues that because restitution is 

 

argues that the restitution award in this case does not comport with due process, we 

note that this restitution award complies with each of the three limitations set out by 

the Court of Criminal Appeals. Here, the trial court awarded restitution for the 

aggravated robbery of Washington, and appellant does not challenge his conviction 

for this offense or otherwise argue that he is not criminally responsible for this 

offense. See Burt v. State, 445 S.W.3d 752, 758 (Tex. Crim. App. 2014); Campbell 

v. State, 5 S.W.3d 693, 697 (Tex. Crim. App. 1999). The trial court awarded 

restitution only to Washington, the complainant of the charged offense. See Burt, 

445 S.W.3d at 758; Campbell, 5 S.W.3d at 697. And the trial court awarded $300 

in restitution to Washington, and Washington testified that appellant stole $300 

from his wallet during the robbery. The amount of restitution ordered by the trial 

court is thus just and supported by a factual basis in the record. See Burt, 445 

S.W.3d at 758; Campbell, 5 S.W.3d at 696–97 (holding that restitution amount of 

$100,000 had factual basis in record when evidence at trial demonstrated that total 

monetary loss of nine of eleven named complainants was $108,324.56).
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punishment, this section conflicts with article 37.07, which allows for a defendant 

to elect to have his punishment determined by the jury. See TEX. CODE CRIM. PROC.

ANN. art. 37.07, § 2(b) (West Supp. 2015). Appellant, however, cites no law 

supporting the proposition that article 37.07 and article 42.037 conflict; he cites no 

law prohibiting a trial court from imposing restitution after a defendant elects to have 

the jury assess punishment; and he cites no law providing that a jury, as opposed to 

the trial court, may impose a restitution requirement.

Article 42.037 clearly authorizes a trial court to order a defendant to make 

restitution to a victim of the charged offense. See id. § 42.037(a). The statute does 

not include any provision limiting its application to situations in which the trial court, 

as opposed to the jury, assesses the defendant’s sentence. See Campbell, 5 S.W.3d 

at 699 (stating that restitution must be only for offense for which defendant is 

criminally responsible, be only for victim of charged offense, and amount must be 

just and supported by factual basis in record, and these are “only limits” recognized 

by Court of Criminal Appeals). Instead, the statute provides that, “[i]n addition to 

any fine authorized by law, the court that sentences the defendant convicted of an 

offense may order the defendant to make restitution to any victim of the 

offense . . . .” TEX. CODE CRIM. PROC. ANN. art. 42.037(a) (emphasis added). In 

construing a statute, we look to the plain language of the statute “in an effort to 

‘effectuate the collective intent or purpose of the legislators who enacted the 
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legislation.’” Hanna, 426 S.W.3d at 91 (quoting Boykin v. State, 818 S.W.2d 782, 

785 (Tex. Crim. App. 1991)). Courts have historically “interpreted restitution 

statutes liberally to effectuate fairness to the victims of crime.” Burt, 445 S.W.3d at 

757; see Hanna, 426 S.W.3d at 96 (“But when the legislature specifically provides 

a procedural mechanism for compensating the victims of crime, that mechanism 

should not be unnecessarily or artificially limited.”).

Although appellant is correct that restitution “serves as appropriate 

punishment for the convicted criminal,” restitution is also “a victim’s statutory right” 

and serves several purposes beyond punishing the defendant. Burt, 445 S.W.3d at 

756; Hanna, 426 S.W.3d at 91 (“Restitution is not only a form of punishment, it is 

also a crime victim’s statutory right.”). The Court of Criminal Appeals has noted 

that, at common law, “the power to impose restitution rested with the judge” and 

that “[s]ince then, the authority to impose restitution has remained by statute with 

the judge.” Campbell, 5 S.W.3d at 698; Green v. State, 880 S.W.2d 797, 802 & n.7

(Tex. App.—Houston [1st Dist.] 1994, no pet.) (“[C]ommon law does support that 

ordering restitution is a matter of judicial discretion.”) (emphasis added). Our sister 

courts have repeatedly held that it is “the function of the trial court, not the jury, to 

establish the amount of restitution for inclusion in the sentence.” Davis v. State, 757 

S.W.2d 386, 389 (Tex. App.—Dallas 1988, no pet.); see also O’Neal, 426 S.W.3d 

at 246 (stating that “[a] sentencing court may order a defendant to pay restitution to 
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the victim of an offense” and that it is duty of trial court to “resolve any dispute 

relating to the proper amount or type of restitution”); Drilling v. State, 134 S.W.3d 

468, 470 (Tex. App.—Waco 2004, order) (per curiam) (“A trial court is given broad 

discretion when granting restitution.”).

We conclude that, although appellant elected to have the jury assess his 

punishment, the trial court had statutory authority to impose a restitution order. We 

therefore hold that the trial court did not abuse its discretion in ordering appellant to 

pay $300 in restitution to Washington.

We overrule appellant’s sole issue.

Conclusion

We affirm the judgment of the trial court.

Evelyn V. Keyes

Justice 

Panel consists of Justices Jennings, Keyes, and Brown.

Publish. TEX. R. APP. P. 47.2(b).