NUMBER 13-13-00204-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

 

NAN CANION, Appellant,

v.

THE STATE OF TEXAS, Appellee.

 

On appeal from the 24th District Court

of Calhoun County, Texas.

 

MEMORANDUM OPINION

Before Chief Valdez and Justices Benavides and Longoria

Memorandum Opinion by Justice Benavides

By six issues, which we consolidate and re-number as four issues, appellant, Nan 

Canion, challenges the trial court’s finding of guilt and subsequent order of restitution. 

We affirm.
2

I. BACKGROUND1

A Calhoun County grand jury indicted Canion for theft of an amount more than 

$1,500 but less than $20,000 (“the 7227 indictment”), a state jail felony enhanced to a 

third-degree felony. See TEX. PENAL CODE ANN. § 31.03 (e)(4)(A), (f)(3)(B) (West, 

Westlaw through 2013 3d C.S.) (enhancing the offense if shown that the owner of the 

property appropriated was at the time of the offense a nonprofit organization). 

The allegations in the 7227 indictment stem from Canion’s role as treasurer for 

the Calhoun County Youth Rodeo Association (CCYRA), a nonprofit organization. 

According to the State’s indictment, Canion unlawfully appropriated money by writing 

several unauthorized checks from the CCYRA’s bank account from May 20, 2009 

through September 29, 2010. Subsequently, the State indicted Canion for an additional 

charge of theft of an amount more than $1,500 but less than $20,000 (“the 7228 

indictment”) arising from alleged unauthorized checks written while Canion served as 

CCYRA’s treasurer during the period of 2007 through 2008. 

Canion and the State reached a plea agreement in which Canion waived her right 

to a jury trial and plead guilty to the 7227 indictment. The State agreed to dismiss the 

7228 indictment, and the agreement further states that restitution was “TBD . . . at [the] 

punishment hearing.” 

On January 3, 2013, Canion entered an open plea of guilty to the trial court on the 

7227 indictment and judicially confessed to all of the allegations contained in the 7227 

indictment. The trial court took the plea under advisement and reset the case for a 

separate sentencing hearing. On March 8, 2013, the trial court held a hearing to decide 

 

1 A related civil appeal styled Canion v. Roberts, Roberts Odefey & White with appellate cause 

number 13-13-00258-CV is also before this Court.
3

Canion’s punishment. Several witnesses testified at the hearing, including Canion. 

At the conclusion of the hearing, the trial court found that the evidence 

substantiated Canion’s guilt, deferred adjudication, and placed Canion on probation for 

ten years. In addition to other punishments including required completion of community 

service hours and a $2,500 fine, the trial court ordered Canion to pay restitution to the 

CCYRA in the amount of $20,847. This appeal followed. 

II. SUFFICIENCY OF EVIDENCE

By her second issue, Canion asserts that the State failed to present sufficient 

evidence to support her plea of guilty. 

A. Applicable Law and Standard of Review

The statute controlling this issue states the following:

No person can be convicted of a felony except upon the verdict of a jury duly 

rendered and recorded, unless the defendant, upon entering a plea, has in 

open court in person waived his right of trial by jury in writing . . . ; provided, 

however, that it shall be necessary for the state to introduce evidence into 

the record showing the guilt of the defendant and said evidence shall be 

accepted by the court as the basis for its judgment and in no event shall a 

person charged be convicted upon his plea without sufficient evidence to 

support the same. The evidence may be stipulated if the defendant in such 

case consents in writing, in open court, to waive the appearance, 

confrontation, and cross-examination of witnesses, and further consents 

either to an oral stipulation of the evidence and testimony or to the 

introduction of testimony by affidavits, written statements of witnesses, and 

any other documentary evidence in support of the judgment of the court. 

Such waiver and consent must be approved by the court in writing, and be 

filed in the file of the papers of the cause.

TEX. CODE CRIM. PROC. ANN. art. 1.15 (West, Westlaw through 2013 3d C.S.).

The Jackson standard of review for sufficiency challenges is inapplicable where a 

defendant enters a plea of nolo contendere or guilty. See Chindaphone v. State, 241 

S.W.3d 217, 219 (Tex. App.—Fort Worth 2007, pet. ref’d). Instead, an appellate court
4

will affirm the trial court’s judgment under article 1.15 if the State introduced evidence 

that embraces every essential element of the offense charged and that is sufficient to 

establish the defendant’s guilt. Id.; see also Tijerina v. State, 264 S.W.3d 320, 323 

(Tex. App.—San Antonio 2008, pet. ref’d). A judicial confession, standing alone, is 

sufficient to sustain a conviction upon a guilty plea under article 1.15. Dinnery v. State, 

592 S.W.2d 343, 353 (Tex. Crim. App. 1979) (op. on reh’g).

B. Discussion

The January 3, 2013 plea hearing record shows that the trial court asked Canion 

whether she had reviewed and signed the State’s punishment recommendation, her 

judicial confession, and plea memorandum submitted to the trial court as evidence. 

Canion replied in the affirmative. The trial court further inquired whether she was 

waiving her right to trial, confrontation, and cross examination of witnesses solely on the 

issue of guilt. Canion again replied in the affirmative. Finally, Canion made a 

voluntary plea of guilty to the trial court on the 7227 indictment. 

Canion argues that the State failed to meet its burden under article 1.15. We 

disagree. The State introduced, without objection, Canion’s judicial confession which 

stated the following:

Under oath, in writing and in open Court, I swear that I have read the 

indictment . . . in this cause, that I am the person named in the indictment . 

. . , that I understand everything that it contains and that I am guilty of all 

allegations made in the indictment . . . , including any amendments or 

modifications thereto, as well as any lesser included offenses. I agree 

and understand that the [t]rial [c]ourt will consider this judicial confession 

as evidence. Finally, I further testify that all allegations contained in the 

indictment . . . are true and correct.

Under Dinnery, Canion’s judicial confession regarding “all allegations” made in the 7227 

indictment is sufficient to sustain her conviction based upon her guilty plea as required 
5

by article 1.15. See id. Accordingly, Canion’s first issue is overruled. 

III. RESTITUTION

By her first and third issues, Canion asserts that the trial court erred in ordering 

her to pay: (1) any restitution related to the 7728 indictment; and (2) any restitution at 

all.

A. Applicable Law and Standard of Review

In sentencing a defendant convicted of an offense, a trial court may order the 

defendant to make restitution to any victim of the offense. See TEX. CODE CRIM. PROC.

ANN. art. 42.037 (West, Westlaw through 2013 3d C.S.). Restitution is intended to 

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

offender and is focused on the victims of the offenses for which a defendant has been 

convicted. Cabla v. State, 6 S.W.3d 543, 545–46 (Tex. Crim. App. 1999) (internal 

quotations omitted).

The trial court is also within its sound discretion to order restitution as a condition of 

probation so long as the amount set by the court has a factual basis in the record and was 

just. See Martin v. State, 874 S.W.2d 674, 676 (Tex. Crim. App. 1994). Thus, a trial 

court’s order of restitution is reviewed for an abuse of discretion. See Campbell v. State, 

5 S.W.3d 693, 696 (Tex. Crim. App. 1999) (“An abuse of discretion by the trial court in 

setting the amount of restitution will implicate due–process considerations.”). This 

discretion is not unlimited. A trial court may not order restitution for an offense for which 

the defendant is not criminally responsible. Campbell, 5 S.W.3d at 697. Furthermore, a 

trial court may not order restitution to anyone but the victim or victims of the offense with 

which the offender is charged. See Martin, 874 S.W.2d at 679. Finally, a trial court may 
6

not order restitution to other victims unless their losses have been adjudicated. 

Campbell, 5 S.W.3d at 697. 

B. Discussion

In her first issue, Canion argues that the trial court abused its discretion by 

ordering her to pay restitution for an amount related to the 7228 indictment because she 

was not found criminally responsible for the 7228 indictment. 

A trial court may only order a defendant to make restitution for losses caused by 

an offense for which she has been found criminally responsible. Gordon v. State, 707 

S.W.2d 626, 630 (Tex. Crim. App. 1986). Canion correctly points out that because the 

State only prosecuted the 7227 indictment, she was only criminally responsible for the 

7227 indictment; however, the procedural posture of this case renders the rule in Gordon

inapplicable.

In Gordon, the defendant was found guilty of violating the civil rights of a prisoner. 

At the time of the decision, such a charge was a third-degree felony. If the prisoner 

sustained a serious bodily injury, the charge was enhanced to a second-degree felony; if 

death occurred, the charge became a first-degree felony. See id. at 627. The prisoner 

in Gordon died from his injuries, but the jury found Gordon guilty solely of the 

third-degree felony. The jury recommended that Gordon’s sentence be probated, and 

the trial court followed that finding with the condition of probation that Gordon pay the 

prisoner’s family restitution of “up to” four thousand dollars as a reimbursement for the 

decedent’s funeral expenses. See id. at 628. The court of criminal appeals held that 

in light of the jury’s finding, the trial court’s order for Gordon to pay the decedent’s funeral 

expenses was a denial of due process, “tantamount to penalizing [Gordon] for an offense 
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of which he was acquitted.” 

Unlike in Gordon, Canion entered into a negotiated plea agreement with the 

State, which was admitted into evidence at the sentencing hearing. The record reflects 

that the restitution was “TBD . . . at punishment hearing.” Furthermore, the State 

agreed to “dismiss” the 7228 indictment. The record reveals that Canion’s trial counsel 

acknowledged at the conclusion of the plea hearing that the amount of restitution to be 

determined by the trial court would relate to the allegations in the 7227 and 7228 

indictments:

[DEFENSE COUNSEL]: [. . .] I've been apprized be the D.A. that the 

only restitution amounts that we're going to be 

talking about are in 7227 and 7228 that we're 

limiting our parameter to that and that way I can 

know exactly what to present to the court in 

both the P.S.I. and punishment hearing set for 

March 8th.

[THE STATE]: That's correct, your Honor, we're not going 

beyond 2007.

At the March 8, 2013 sentencing hearing, the State introduced two sets of the 

CCYRA’s bank statements for the years 2009 through 2010 and the years 2007 through 

2008. Prior to the admission of these two exhibits, Canion’s trial counsel made the 

following statement:

[DEFENSE COUNSEL]: [. . .] Number two, and more importantly, is that 

my understanding of the agreement with the 

Court that even though the other indictment 

was dismissed the Court was going to allow 

him to put in evidence of the 7228, which is the 

2007 and 2008 and I'm understanding that was 

the agreement, so with that understanding then 

no other objection other than that.

When Canion agreed to the terms of a plea bargain agreement, she was deemed 
8

to enter into the agreement knowingly and voluntarily unless shown otherwise, and, in 

effect, became a party to a “contract” with the State. See Ex parte Williams, 637 

S.W.2d 943, 947 (Tex. Crim. App. 1982). The “contract” becomes operative when the 

court announces it will be bound by the plea agreement. Id. Both the defendant and 

the State are bound to carry out the terms of the agreement as set out by the parties. 

Id. To allow Canion to circumvent the terms of an agreement on appeal, after her trial 

counsel and the State stipulated on the record to its terms regarding what the trial court 

could consider for purposes of ordering restitution, would defeat the purpose of the 

agreement and render it meaningless. Therefore, after reviewing the record, we hold 

that the Gordon rule is inapplicable under the facts of this case because a prior 

agreement had been reached between Canion and the State. Canion’s first issue is 

overruled. 

By her third issue, Canion argues that the State failed to meet its burden to show 

that the amount of the restitution order be supported by a factual basis. We disagree. 

The record shows that CCYRA is a non-profit organization in which Canion 

served as treasurer in an unpaid capacity. CCYRA member Richard Meyer testified 

that Canion’s responsibilities as treasurer involved keeping “the books” and “receipts” as 

well as a “green money box.” Furthermore, the State introduced two separate exhibits 

of bank statements of transctions for the period of 2009 until 2010 and 2007 until 2008, 

as well as spreadsheets prepared by the CCYRA’s accountant for a meeting between 

the CCYRA and Canion regarding checks made in Canion’s name from the CCYRA’s 

bank account. The trial court also admitted the 7727 and 7728 indictments, which 

contained itemizations of the checks and totals that the CCYRA claimed Canion 
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misappropriated from the organization for 2007 through 2008 and 2009 through 2010. 

Meyer testified that the total amount of restitution CCYRA sought to recover was 

$20,847.86. However, Canion disputed the $20,847.86 figure and testified that she had

offered $11,000 in restitution to the CCYRA. Canion also filed a supplement to her 

pre-sentence investigation report, in which she apologized for her actions and stated that 

she owed the CCYRA $2,316.08 based upon her own accounting. 

When conflicting evidence is presented, reconciliation of those conflicts is within 

the sole province of the factfinder because it turns on an evaluation of credibility and 

demeanor. See TEX. CODE CRIM. PROC. ANN. art. 38.04 (West, Westlaw through 2013 

3d C.S.); see also Cain v. State, 958 S.W.2d 404, 408–09 (Tex. Crim. App. 1997). 

Therefore, we conclude that the trial court did not abuse its discretion in ordering Canion 

to pay restitution in the amount of $20,847.86 because such amount has a factual basis 

in the record. See Martin, 874 S.W.2d at 676. Canion’s third issue is overruled. 

IV. PLEA AGREEMENT

Canion argues in her fourth and fifth issues that the trial court erred by admitting 

and considering evidence “in contravention of the agreed plea recommendation” and not 

allowing Canion to withdraw her plea. 

Specifically, Canion argues in her fourth issue that the trial court improperly 

considered the 7228 indictment because such an indictment should have been 

dismissed as part of the plea agreement entered into by the State and Canion. We are 

unpersuaded. As outlined in Parts II and III of this opinion, Canion voluntarily entered 

into a plea agreement with the State, in which restitution would be determined at a 

separate hearing and the State would dismiss the 7228 indictment. Canion contends, 
10

however, that she agreed to the plea “with the understanding that the 7228 indictment 

was to be dismissed and the [trial] court was not going to consider the amounts set out in 

the 7228 indictment.” While the former of Canion’s contention is supported by the 

record, the latter is not. The record is clear that the parties stipulated on the record that 

the amount of restitution would be limited to the 7227 and 7228 indictments. The State 

stated on the record that a motion to dismiss the 7228 indictment was filed by the State, 

but the trial court carried it with the case and did not rule on it. The record shows that 

the State’s agreement to dismiss the 7228 indictment did not affect the parties’ 

agreement, as stated in open court, because the 7227 and 7228 indictments would be 

considered solely for purposes of determining the amount of restitution. Canion’s fourth 

issue is overruled.

Canion argues by her fifth issue that because the trial court “decline[d]” to follow 

the plea agreement, it should have sua sponte withdrawn Canion’s plea of guilty and 

enter a not guilty plea. We incorporate our review of the record from Parts II, III, and IV 

of this opinion and note that the record does not show any effort or intent by the trial 

court to “decline” following the plea agreement. Therefore, Canion’s argument is 

without merit. We overrule Canion’s fifth issue. 

V. EVIDENTIARY RULINGS

By Canion’s sixth and final issue, she asserts that the trial court erred by admitting 

copies of spreadsheets prepared by the CCYRA’s accountant, labeled State’s Exhibits 5, 

6, and 7. 

A. Standard of Review and Applicable Law

A trial court’s admission of evidence after finding it authentic is reviewed for an 
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abuse of discretion. Tienda v. State, 358 S.W.3d 633, 638 (Tex. Crim. App. 2012). If 

the trial court’s ruling that a jury could reasonably find proffered evidence authentic is at 

least “within the zone of reasonable disagreement,” we will not interfere. Id. 

Authentication is a condition precedent to admissibility that may be satisfied by 

“evidence sufficient to support a finding that the matter in question is what its proponent 

claims.” TEX. R. EVID. 901(a). Evidence may be authenticated in a number of ways, 

including by direct testimony from a witness with personal knowledge, by comparison 

with other authenticated evidence, or by circumstantial evidence. Tienda, 358 S.W.3d 

at 638. 

B. Discussion

Canion argues that the trial court abused its discretion by overruling her trial 

counsel’s objections to the authenticity of State’s Exhibits 5, 6, and 7 because the State 

introduced the evidence through an improper witness. 

The State introduced State’s Exhibits 5, 6, and 7 through CCYRA member Meyer. 

Prior to the exhibits’ admission, Meyer testified that the CCYRA accountant, whose 

name is not apparent from the record, prepared spreadsheets of the CCYRA bank 

account transactions in advance of a meeting that Meyer had with Canion. Over 

Canion’s objection on authenticity, the State asked Meyer whether these exhibits were 

kept by CCYRA in the ordinary course of business, to which Meyer replied “No, sir.” 

Meyer additionally testified that the spreadsheets were prepared by the “CPA” from the 

CCYRA bank statements. On voir dire by Canion’s trial counsel, the following colloquy 

with Meyer took place:

[DEFENSE COUNSEL]: Mr. Meyer, you didn't produce those documents 

5, 6 and 7; correct?
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MEYER: No, sir.

Q. You didn't look at checks and go back and 

determine what, if anything, was included in 

that 5, 6 and 7; correct?

A. No, sir.

Q. And, in fact, what the prosecutor asked you, 

you looked at the front page; correct?

A. Just now?

Q. Yes, sir.

A. Yes.

Q. Okay. And you can't explain to the Court what 

the foundation is or the basis of even any of 

those numbers being on there because you 

didn't prepare it; correct?

A. I did not prepare it; correct.

[DEFENSE COUNSEL]: Same objection, Judge, no proper foundation.

THE COURT: [Exhibits] Five, six and seven are admitted.

The record shows that Meyer did not produce or prepare exhibits 5, 6, and 7, nor 

was he entirely familiar with the exhibits until they were handed to him by the prosecutor. 

Accordingly, we conclude that the trial court’s finding of authenticity was outside of the 

zone of reasonable disagreement. See id. The State could have properly 

authenticated these records through other evidence, such as the direct testimony of the 

accountant who prepared the documents. 

Because we conclude that the trial court abused its discretion, we must now 

evaluate for harm. See TEX. R. APP. P. 44.2. Generally, if the trial court’s ruling merely 

offends the rules of evidence, the erroneous admission or exclusion of evidence is 
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non-constitutional error for purposes of a harm analysis. See Celis v. State, 354 

S.W.3d 7, 38 (Tex. App.—Corpus Christi 2011), aff’d 416 S.W.3d 419 (Tex. Crim. App. 

2013). Non-constitutional errors that do not affect substantial rights must be 

disregarded. TEX. R. APP. P. 44.2(b). Inadmissible evidence can be rendered 

harmless if other evidence at trial is admitted without objection and it proves the same 

fact that the inadmissible evidence sought to prove. Anderson v. State, 717 S.W.2d 

622, 628 (Tex. Crim. App. 1986) (en banc). The inadmissible spreadsheets appeared 

to be summaries from the CCYRA’s more detailed monthly bank statements evidencing 

transactions, which were admitted without objection. Accordingly, the erroneous 

admission of the spreadsheets were harmless and did not constitute reversible error. 

See id. Canion’s final issue is overruled. 

VI. CONCLUSION

We affirm the trial court’s judgment. 

__________________________

GINA M. BENAVIDES,

Justice

Do not publish.

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

Delivered and filed the

3rd day of July, 2014.