NUMBER S 12 - 15 - 00 145 - CR & 12
- 15 - 00147 - CR IN THE TWELFTH DISTRICT COURT OF APPEALS

TYLER, TEXAS
B RITTANY MICHELLE BARRETT , Appellant v. THE STATE OF TEXAS, Appellee From the 1 14 th District Court of Smith County, Texas Trial Cause Numbers 114

- 0873
- 12 & 114

- 0875
- 12



### STATE ’ S BRIEF ORAL ARGUMENT NOT REQUESTED D. MATT BINGHAM Criminal District Attorney Smith County, Texas AARON REDIKER Assistant District Attorney State Bar of Texas Number 24046692 Smith County Courthouse, 4th Floor Tyler, Texas 75702 Phone: (903) 590

- 1720 Fax: (903) 590
- 1719 Email: arediker@smith

- county.com ACCEPTED 12-15-00145-CR TWELFTH COURT OF APPEALS

TYLER, TEXAS 10/22/2015 11:16:24 PM

Pam Estes CLERK1 T ABLE OF C ONTENTS Index of Authorities
................................ ................................ ................................ ............ 2 Statement of Facts
................................ ................................ ................................ ............... 3 Summary of Argument
................................ ................................ ................................ ....... 5
I. I SSUE : The post

- sentence investigation report, containing the itemized medical bills of the victim in each case, provided the tr ial court with a sufficient factual basis to support the award of restitution.
................................ ................................ ...... 6 Standard of Review
................................ ................................ ................................ ............. 6 Argument ................................ ................................ ................................ .............................. 6 Certificate of Compliance
................................ ................................ ................................ 10 Certificate of Service
................................ ................................ ................................ ........ 112 I NDEX OF A UTHORITIES Texas Cases Burt v. State , 445 S.W.3d 752 (Tex. Crim. App. 2014)
................................ ................... 6, 8 Campbell v. State , 5 S.W.3d 693 (Tex. Crim. App. 1999)
................................ ................... 8 Cartwright v. State , 605 S.W.2d 287 (Tex. Crim. App. 1980)
................................ ............. 6 Idowu v. State , 73 S.W.3d 918 (Tex. Crim. App. 2002)
................................ ....................... 8 Jones v. State , 713 S.W.2d 796 (Tex. App.

— T yler 1986 , no pet.)
................................ ..... 8
Texas Statutes Tex. Code Crim. Proc. Ann. art. 42.037
................................ ................................ ............. 7 Texas Rules Tex. R. App. P. 33 .1 ................................ ................................ ................................ ............... 83 NUMBER S 12 - 1 5 - 00 145 - CR & 12
- 15 - 00147 - CR IN THE TWELFTH DISTRICT COURT OF APPEALS

TYLER, TEXAS BRITTANY MICHELLE BARRETT , Appellant v. THE STATE OF TEXAS, Appellee From the 1 1 4th District C o urt of Smith County, Texas Trial Cause Numbers 1 14
- 0873
- 12 & 114

- 0875
- 12



### STATE ’ S BRIEF
T O THE H ONORABLE C OURT OF A PPEAL S : Comes now the State of Texas, by and through the undersigned Assistant Criminal District Attorney, respectfully requesting that this Court overrule appellant ’ s sole alleged issue and affirm the judgment of the trial court in the above

- captioned cause s .
S TATEMENT OF F ACTS On 5 September 2012, after appellant had pleaded “ guilty ” to the offense of aggravated assault with a deadly weapon in cause numbers 114

- 0873
- 12 and 114

-4

0875
- 12, the trial court deferre d a finding of guilt , placed appell ant under numerous conditions of community supervision for a term of ten years in each

ca se , and order ed restitution paid to the victims in an amount to be determined by a post
- sentence investigation (III Rep. ’ s R. at 12
- 13 , 17
- 18 ). On 30 November 2012, the trial court amended the conditions of appellant ’ s community supervision, ordering her to pay restitution in the amount of $853. 75 to E ast Texas Medical Center ( “ ETMC ” ) and $731.96 to ETMC

- EMS and in cause number 114

- 0873
- 12 and $68,662.15 to Mother Francis Hospital in cause number 114

- 0875
- 12 (I Clerk ’ s R. at 53 ; II Clerk ’ s R. at 51 ) . The orders amending the conditions of appellant ’ s community supervision state that these amounts had been determined by a post

sentence investigation (I Clerk ’ s R. at 53 ; II Clerk ’ s R. at 51 ). The post

- sentence investigation report appears to have been filed with the trial court on 9 October 2012, and matches the amounts reflected in the amendment orders (I Clerk ’ s R. Supp . a t 4
- 6 ; II Clerk ’ s R. S upp. a t 4
- 6 ). The report contains an itemized statement of charges for medical services p rovided to the victim s named in the indictment s (I Clerk ’ s R. Supp . a t 8 , 10, 12 , 14
- 18) ; II Clerk ’ s R. S upp. a t 8 , 10, 12, 14
- 18 )
. On 125

May 2015, the trial court proc ee ded to final adjudication in each case , revoked appellant ’ s community supervision , and ordered restitution in the amount of $671. 3 8 to East Texas Medical Center ( “ ETMC ” ) and $561. 33 to ETMC/EMS in cause number 114

- 0873
- 12 and $67,106. 15 to Trinity Mother Francis in cause number
114
- 0875
- 12 ( VI Rep. ’ s R. at 65 )
.
S UMMARY OF A RGUMENT The clerk ’ s record in each case was supplemented with the post

- s entence in vestigati on report c ontaining the itemize d medical bills of the victims. A s the report w as considered by the trial court in assessing the amount of restitution , the record thus contains a factual basis f or e ach award
. F urther, a ppellant ’ s challenge to the propriety of the trial court ’ s award of restitution to a thi rd party c annot be raised for the fir st time on appeal.6

I. I SSUE : T he post

- sentence investigation report , containing the itemized medical bills of the victim in each case, provided the trial cour t with a sufficient factual basis to support the award of restitution
. S TANDARD OF R EVIEW A trial court ’ s restitution order is reviewed for an abuse of discretion
. Cartwright v. State , 605 S.W.2d 287, 289 (Tex. Crim. App. 1980)
. “ [ I] f there is a lack of a sufficient factual basis

— appellate courts should vacate and remand the case fo r a restitution hearing because the trial judge is authorized to assess restitution, but the amount of restitution is not (yet) supported by the record. ” Burt v. State , 445 S.W.3d 752, 758 (Tex. Crim. App. 2014)
.
A RGUMENT In a single issue, appellant argues that t he evidence supporting the amount of restitution ordered by the trial court in each case is legally insufficient (Appellant ’ s Br. 4
- 9)
. Article 42.037 of the Code of Criminal Procedure provides in pertinent part: In addition to any fine authorized by law, the court that sentences a defendant convicted of an offense may order the d efendant to make restitution to any victim of the offense or to the compensation to victims of7

crime fund established under Subchapter B, Chapter 56, to the extent that fund has paid compensation to or on behalf of the victim. If the court does not order r estitution 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 2014). “ If the offense results in personal injury to a victim, the court may order the de fendant to make restitution to: (A) the victim for any expenses incurred by the victim as a result of the offense;

or (B) the compensation to victims of crime fund to the extent that fund has paid compensation to or on behalf of t he victim. ” Tex. Code Crim. Proc. Ann. art. 42.037 (b)(2) (West 2014). “ If a defendant is placed on community supervision or is paroled or released on mandatory supervision, the court or the parole panel shall order the payment of restitution ordered under this article as a condition of community supervision, pa role, or mandatory s upervision. ” Tex. Code Crim. Proc. Ann. art. 42.037 (h) (West 2014)
. “ [D] ue process places three limitations on the restit ution a trial judge may order: (1) the restitution ordered must be for only the offense for which the defendant is criminally responsible; (2) the restitution must be for only the victim or victims of the offense for which the defendant i s charged;8

and (3) the amount must be just and supported by a f actual basis within the record. ” Burt , 445 S.W.3d a t 758 . P re - and post

- sentence investigation reports that include copies of bills incurred by a victim for m edical expenses r esulting from the defendant ’ s offense provide a sufficie nt factual basis for the trial court ’ s award of restitution. Jones v. State , 713 S.W.2d 796, 797

- 798 (Tex. App.

— Tyler 1986 , no pet. )
. T he record does not show that appellant raised an y objection to the post

- sentence investigation report or the amount of restituti on assessed by the trial court in either case prior to this appeal. See Garcia v. State , 930 S.W.2d 621, 623

- 624 (Tex. App.

— T yler 1996 , no pet. ) ( “ A defenda nt bears the burden of proving that the information contained in a presentence investigation report was materially inaccurate and that the judge relied on inaccurate information. ” ). A p pel lant has therefore forfeited any alleged

error i n t he trial cou rt ordering restitution payable to third party medical providers rather than the victims. See Tex. R. App. P. 33.1 (a); Idowu v. State , 73 S.W.3d 918, 921 (Tex. Crim. App. 2002) ( “ If a defendant wishes to complain about the appropriateness of (as opposed to the factual basis for) a trial court's9

restitution order, he must d o so in the trial court, and he must do so explicitly. ” ).
F urthermore, a s the post

- sentence investigation report co ntains itemized medical bills from which the trial court could have determined the amount owed to ETMC and Trinity Mother Francis Hospital for the ir treatment of the victim in each case , the evidence s upporting the restitution orders is legally sufficient
. See Jones , 713 S.W.2d a t 797
- 98 . Appellant ’ s sole alleged issue is thus without merit and should be overruled. P RAYER WHEREFORE, PREMISES CONSIDERED, the State of Texas prays that the Court overrule appellant ’ s alleged issue and affirm the judgment of the 1 1 4th District Court of Smith County, Texa s, in the above

- captioned cau se s . Respectfully submitted, D. MATT BINGHAM Criminal District Attorney Smith County, Texas /s/ Aaron Rediker Aaron Rediker Assistant District Attorney10 SBOT #: 24046692 100 Nort h Broadway, 4th Floor Tyler, Texas 75702 Office: (903) 590

- 1720 Fax: (903) 590

- 1719 (fax) arediker@smith

- county.com

C ERTIFICATE OF C OMPLIANCE Pursuant to Texas Rule of Appellate Procedure 9.4(i)(3), the undersigned attorney certifies that the word count for this document is 1,153 words as

c a lculated by Microsoft Word 2016
.
/s/ Aaron Rediker Aaron Rediker11 C ERTIFICATE OF S ERVICE The undersigned attorn ey hereby certifies that on this 2 2nd day of October 2015, t he State ’ s Brief in the above

- numbered caus e has been electronically filed, and a legible copy of the State's Brief has been sent by email to J ames W. H uggler Jr. , attorney for appellant, at J HugglerLaw@ sbcglobal.net
.
/s/ Aaron Rediker Aaron Rediker