## I N T H E C O U R T O F C R I M I N A L A P P E A L S O F T E X A S

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v . T H E S T A T E O F T E X A S
O N S T A T E ’ S P E T I T I O N F O R D I S C R E T I O N A R Y R E V I E W F R O M T H E S E V E N T H C O U R T O F A P P E A L S

B R A Z O S C O U N T Y

K E L L E R , P . J . , d e l i v e r e d t h e o p i n i o n o f t h e C o u r t i n w h i c h P R IC E , W O M A C K , K E A S L E R a n d H E R V E Y , J J . , j o i n e d . C O C H R A N , J . , f i l e d a c o n c u r r i n g o p i n i o n i n w h i c h M E Y E R S , J O H N S O N a n d A L C A L A , J J . , j o i n e d . During two vehicle burg laries, a number of items wer e stolen. Appellant was char g ed with misdemeanor theft for

stealing two of these items. Af ter she w as convic ted, the trial judg e place d her on probation and, as a condition of probation, imposed restitution for some of the missing items that appellant had not been char g ed with stealing

. Evidence in the rec ord showed the value of these items. Although the issue of restitution and the basis for imposing it we re thoroug hly discussed at trial, appellant raised no objection to the restitution require ment. We must now deter mine whether appellant may claim for the first time on app ea l that the restitut ion was for items that she was notGU TIERREZ-RODRIG UEZ- 2

char g ed with stealing

. We hold that she may not, beca use, in acc ordanc e with our decision in Speth , 1
she acc epted the restitution require ment as a condition of probation by failing to object when she had an opportunity

to do so.
I. BACKG ROUND
A. Trial Daniel McCoy testified t hat i n Dec ember of 2010 hi s truck was burg larized. An i Pod and

sever al other items wer e stolen. Scott Bla ir testified that his truck was burg larized at around the same time. A GPS unit and sever al other i t em s we re s tolen. The iPod and GPS wer e rec overe d from
pawn shops, and appe l l an t was identified as the person who had pawne d them. Appellant was char g ed by information with two Class B misdemeanors for the theft of the iPod and the GPS. At 2 trial, the complainants identified their iPod and GPS and testified to their value. Eac h complainant also test i fi ed to the value of the other items that had been stolen at the same time as the iPod and
GPS. A jury found appellant g uilty of both offe nses. After appellant was found g uilty , the jury was discharg ed, and the trial court c onducted a punishment hearing

. At the punishment hear ing, the trial court indicated that it intended to assess punishment a t six months’ confine ment, probate d for one y ear , and assess an unprobate d fine of $500 in eac h case . The State asked if there would be “any monetary restitution.” The trial court ag ree d that there should be, and the State discussed the amount of loss suffe red by the complaining witnesses. The State acknow ledg ed that the items appellant was char g ed with stealing —th e iPod and GPS—were

rec overe d in wo rk i n g order

. Howeve r, there wer e other items that wer e not rec overe d, and their

6 S.W .3d 530 (Tex. Crim. App. 1999). 1
T E X
. P E N A L C O D E § 31.03(a) , (e) (2). 2GU TIERREZ-RODRIG UEZ- 3

combined value totaled appr ox imately $1,215. After this discussion, the trial court sentenc ed appellant to 180 day s’ confine ment and a $200 fine for eac h case , suspended the sentenc es for one y ear , and probate d the fines. As a condition of probation, the court require d restitution of $1,215 to be p ai d to the complaining witnesses to
compensa te them for the loss of the unrec overe d items. B. App eal On appea l, appellant arg ued, among other things, that the restitution require ment wa s n o t supported by evidenc e. The court of appea ls ag ree d, holding that the restitution require ment lacke d
any fac tual basis in the rec ord. I n response to the State’s arg ument that appellant ha d waived a ny 3 challeng e to the restitution require ment by failing to object, the court of appea ls relied upon Maye r 4
and Idowu for the proposition that due proce ss require s that the amount of restitution be supported

5 by a fac tual basis within the rec ord. The court of appea ls deleted the restitution require ment from 6 the conditions of proba tion and aff irmed the judg ments as modified. 7
C. Discr etionary Re view The S tate filed a petiti on for discretionary revie w, arg uing that appellant h ad fo rf eited her

Gutierrez-Rodriguez v. State , 405 S.W .3d 936, 943 (Tex. A pp.–Amarillo 2013) (holding 3 that the “evide nce at trial proved Appellant only pawned the GPS device and i P o d k nowing they wer e stolen” and “did not establish that Appellant was g uilty of either burg lary ” and “[b] oth items wer e re turned to their owne rs”) (empha sis in original). Maye r v. State , 309 S.W .3d 552 (Tex. Crim. App. 2010). 4 Idowu v. State , 73 S.W .3d 918 (Tex. Crim. App. 2002). 5 Gutierrez-Rodriguez , 405 S.W .3d at 943 n.3. 6 Id . at 943. 7GU TIERREZ-RODRIG UEZ- 4

claim by failing to object at trial. The State also arg ued that, if appellant had not forf eited her claim, the proper reme dy would be to set aside the g rant of community supervision, including the restitution require ment, and rema

nd for a new punishment hear ing. We g rante d revie w to consider both issues. 8

II. ANALYSIS Ordinar ily , to prese rve an issue for appellate revie w, an appellant must have first raised the issue in the trial court. Howeve r, it is also ordinarily true that a claim reg arding sufficie ncy of the 9
evidenc e need not be prese rved for revie w at the t ri al level. But, “imposition of a sentenc e is 1 0 profoundly differ ent from the g ranting of community supervision.” Concepts of err or-pr eser vation 1 1
that apply in non-proba

tion case s do not nece ssarily car ry over to probation case s beca use probation involves a kind of contr actua l relationship that does not exist in non-probation ca ses. I n Speth v. State , we he ld that, when proba tion is g rante d, the t rial cour t ext ends cle mency
to the defe ndant and cre ates a sort of contra ctual rela tionship. Conditi ons of probation that are not

1 2 objected to are aff

irmatively acc epted as terms of the contra ct, unless the condition is one that the 1 3
criminal justice sy stem finds to be intolerable and is the ref ore not a contra ctual option available to
(1) Must the defe ndant o b j ec t at t ri al to complain on appea l about a condition of 8 community supervision requiring pay ment of restitution for an offe nse with which the defe ndant was not char g ed? (2) What is the appropr iate reme dy for an unauthorized restitution order as a condition of community

supervision when the trial court a ssesses punishment? T E X
. R

U L E A P P
. P. 33.1(a); Burt v. State , 396 S.W .3d 574, 577 (Tex. Crim. App. 2013). 9
Moore v. State , 371 S.W .3d 221, 225 (Tex. Crim. App. 2012); Moff v. State , 131 S.W .3d 1 0 485, 489 (Tex. Crim. App. 2004).

Speth , 6 S.W .3d at 532. 1 1 Id. at 533. 1 2 Id. at 534. 1 3GU TIERREZ-RODRIG UEZ- 5

the parties. Requiring restitution for stolen items that wer e not included in the char g ing instrument,

1 4
but tha t be longe d to the complaining witnesses and w ere stolen during the same tra nsaction as the char g ed i t em s , i s not the sort of condition that the criminal justice sy stem finds intolerable or unconsciona

ble. This is true even if appellant’ s connec tion to the thef t o f t h es e i tems was not specific ally established, as long as she had the opportunity to object and challeng e such a connec tion.
A trial objection would have g iven t h e t ri al court the opportunity to rec onsider the condition of probation o r t o re co n sider the appropr iateness of the probation contra ct without the objected- to condition. The rec ord in the prese nt case establishes that the restitution require ment was discussed

1 5 during the punishment stag e hear ing, so appellant had an opportunity to object to it. Consequently , 1 6
in acc ordanc e with Speth , she for feited he r complaint. The case s cited by the court of appea ls do not resolve the issue befor e us. The defe ndant in Maye r did not rec eive probation, so there was no “cont ra ct

. ” R est itution was a condition of t he 1 7
defe ndant’s probation in Idowu , but we declined to decide whether a sufficie n cy claim could be forf eited bec ause the re w as a f actua l basis for the a mount of restitution ordere d. 1 8
We need not deter

mine whether appellant’ s complaint in the prese nt case rela tes to the “appr opriatene ss” of restitution or to its “fa ctual basis” beca use, by failing to object to the restitution,

Gutierrez v. State , 380 S.W .3d 167, 175-76 (Te x . Crim. App. 2012). 1 4 See Spe th , 6 S.W .3d at 534-35. 1 5 See id. at 534 n.9 (rule that a def endant acce pts the conditi ons of probation to which he 1 6 does not object assumes that the defe ndant knew what the conditions wer e in time to object at trial). 309 S.W .3d at 553 (sente nced to thirty y ear s’ incar cer ation). 1 7 73 S.W .3d at 922. 1 8GU TIERREZ-RODRIG UEZ- 6

appellant “af

firmatively acc epted [ t h e] t erms of the contra ct.” Reg ardle ss of how appellant’ s 1 9 complaint is char acte rized, she bound herse lf to the terms of the probation contra ct by acc epting the benef its of the contra ct without objection. 2 0
Be cause we hold that appellant forf eited her claim reg arding the restitution require ment, we do not rea ch the State’s second g round for revie w. The judgme nt of the court of appea ls is reve rsed, and the judg ment of the trial c ourt is affir med. Deliver ed: Octobe r 1, 2014 Publis h

See Spe th , 6 S.W .3d at 534.

1 9 The State contends that the claim here is one of “author ization” rathe r than “suff iciency .” 2 0 These conce pts are not nece ssarily helpful, t h o u gh, beca use the two conce pts can overla p: in the usual sufficie ncy claim, the “suff iciency ” of the evidenc e is measure d ag ainst alleg ation s t h at are “author ized” by the indictment. See Malik v. State , 953 S.W .2d 234, 240 (Tex. Crim. App. 1997); Curry v. S t a t e , 3 0 S

. W

. 3d 394, 404 (Tex. Crim. App. 2000) (a sufficie ncy revie w must be based up o n t h e statutory elements of the offe nse “as modified by the char g ing instrument.”). We have applied Malik ’s g ener al fra mework to at least some punishmen t i s s u es. Roberson v. State , 420 S.W .3d 832, 841 (Tex. Crim. App. 2013). Given our dispositi on on the basis of Speth , we need not decide whether Malik ’s principles would require incorporating the char g ing instrument’s alleg ations into a sufficie ncy

revie w of the f

actua l basis for restitution. Moreove r, appellant is e stopped from complaining beca

use she a cce pted the bene fit of the contr act: proba tion.