*1 Thomas, stated infor- “[d]enial access to proba-
mation which would have a reasonable parte Douglas Eugene LEWIS. bility affecting outcome a defen- No. 71615. abridges pro- dant’s trial a defendant’s due Texas, Thomas, Appeals rights_” Court Criminal cess at S.W.2d En Banc. Accordingly, Ap- 113. we hold the Court of peals concluding erred in on the basis of 14, Dec. appellant Thomas was not entitled to a production potential recess to obtain Bra-
dy appellant material because had not made
pretrial pursuant efforts to obtain it
Government Code.
In appeal Thomas we abated the and re- subpoenas
manded to the trial court to issue production report.
for then di-
rected that the trial court make
fact and forward them to this Thom- Court. capital
as was a murder case which was
directly appealed peti- to this In Court. discretionary
tion for review we believe Appeals appropriate Court is the court
to further address these issues and decide Therefore, proper course of action. hav-
ing Appeals held the Court of erred in
concluding production report Thomas, compelled
not under we reverse and proceedings to that
remand court for consis- opinion.
tent with this
CAMPBELL, Judge, dissenting.
I appel dissent. The record reflects that request Stoppers report
lant’s for the Crime grounded solely
at trial was on Rule 614 of
the Texas Rules of Criminal Evidence.
Therefore, appellant may not assert a differ Maull, Land, (i.e., Sugar appel- Merrilie legal theory
ent W. Fourteenth Amendment lant. process) appeal. Tex.R.App.Proc. due 52(a); Rezac v. Speers, Atty., Kath- Peter Former Dist. (Tex.Crim.App.1990). This not Court should Hamilton, Conroe, Atty., leen Asst. Dist. legal theory
reach out and decide a case on a Huttash, Austin, Atty., Robert State’s for the at trial. raised State.
I affirm would of the court of
appeals. OPINION
McCORMICK, P.J.,
WHITE, J., join.
OVERSTREET, Judge.
post-conviction application
This is a
for a
corpus
pursuant to Arti-
writ of habeas
filed
8, 1991,
February
cle
V.A.C.C.P. On
221st
applicant was convicted
Judicial
County
for the
District Court of
*2
evidentiary hearing and to make
Burglary
a
in cause
duct an
of
of Habitation
offenses
(enhanced),
any
90-
of
to whether
documen-
numbers 90-09-01053-CR
fact as
90-10-01226-CR,
10-01225-CR,
applicant
90-10-1227-
that
was
tation exists to reflect
CR,
Applicant’s chal-
90-10-01228-CR.
and
for which he has
of
offense
convicted
the
lenge
to cause number 90-10-
is directed
that
restitution or
he
pay
been ordered to
alleged
the
wherein
indictment
01225-CR
Our review
agreed
to
such restitution.
complainant
Whatley
was Donna
and
that the
that
supplemental record reveals
both
committed
or
that the offense was
about
attorneys
prosecuting
trial
and defense
the
day August
the 27th
of
reflecting their
have submitted affidavits
rec-
copy
agreement. A
plea
ollections of
plea bargain agreement, ap-
Pursuant to a
plea proceedings
the statement of facts of the
plicant
pleas
guilty,
trial
entered
and the
is also
guilty
in
included.
applicant
charged
court found
punishment
and assessed
in
each indictment
prosecutor’s
indicates
The
affidavit
that
thirty years
each cause at
confinement
during plea
practice
it
her
negotiations,
to
Justice,
Insti-
Department
Texas
Criminal
concerning
in
file
make notations
her
further,
The trial
tutional Division.
court
negotiations
to use a standard form
and
pursuant
plea bargain agreement, or-
to the
affidavit
which remains in the file. Her
also
concurrently.
run
dered all sentences to
No
pertaining
that
to the [in-
states
form
“[t]he
appeal
from these
was taken
convictions.
#
a
90-10-01225-CR]
stant
cause indicates
application
filed and set this
to decide
in
with
total
restitution of
$10988.20
validity
trial court’s
order of resti-
said total
for the benefit of Donald
sum
judgment.
judg-
in
tution contained
The
total sum
Snortland and
of said
for
$10738.20
ment
recites “Total Amount of Restitu-
the benefit of
The affidavit adds
U.S.A.A.”
$10,988.20[,]”
tion/Reparation:
and contains
it
in
practice
that
is her
to include
“pay
applicant
an
that
in
order
negotiations
for restitution
the sums
when
$10,988.20
for
total sum of
benefit
information,
provided
the victim
this
and
(1)
Snortland,
[specific
to Donald
that she does
include these sums
not
without
(2) $10,738.20
address];
U.S.A.A.,
street
to
counsel,
informing
and
first
defense
[specific
address],
post office box
and said
these sums were included
payable
sum be
to
District Clerk
ment,
judgment (original
and that
and
“[t]he
Montgomery County, Texas upon Defen-
defendant)
given
for
to
was
parole mandatory
dant’s release on
or
sus-
entering
the defendant
his
to
pension [sic].”
plea.”
I.
that
Defense counsel’s affidavit states
dur-
practice
ing plea negotiations it is his
APPLICANT’S CONTENTION
notations,
make
that he uses a standard
and
Applicant contends the restitution order
disposition
remains
his
form which
file.
process
violates due
of law
Four-
under the
per-
that
form
“[t]he
His affidavit also states
teenth Amendment to the United
Con-
States
taining to
# 90-10-01225-CR]
the [instant
course of law
stitution and due
under Article
any
cause does not have
indication
restitu-
I, Section 19 of the State of Texas Constitu-
negotiatedf,]”
tion ordered or
it is
(1)
reasons;
multiple
tion
he
given
for
no
practice
plea negotiations
his
to include
heard,
opportunity
and no
notice
sums for restitution if the assistant district
(2)
victim to which he was
restitu-
attorney requires
as a condition of a
such
tion
not related to the
plea agreement.
affidavit adds
charged offense.
records do not indicate
restitution was
it
this ease. While
states that
II.
not
this informa-
he does
now recall whether
PROCEDURAL HISTORY
relayed
tion was
to him
the assistant
supplement
attorney,
trial court
district
and that he does
now
We ordered the
any
relayed
relevant
or con-
recall whether or not he
informa-
record with
documents
restitution,
regarding
tion to Ms client
it also to victims of
crimes
which the defendant
says
primary importance
that “the
charged
convicted,
has not been
albeit in
negotiations
central focus of the
with the
the context of
restitution as
condition of
[attorney
[assistant
[district
was the num- probation.
by specifically pro-
We held that
years
ber
of which
client
[Ms]
would be
viding
*3
may
that a defendant
not be ordered
receiving
a
guilty[,]”
as
result of his
payments except
to make
restitution “to the
and that
thirty
Ms records show the term of
victim,”
Legislature
the
limit
intended to
years
only
dispo-
confinement as the
term of
ordering
discretion of the trial court in
resti-
sition; as there
a
were
number of causes
payments
accordingly
tution
limited res-
upon
applicant
originally charged,
wMch
titution to the victim of the offense for which
agreement
mainly
upon
centered
him the defendant was convicted. Id.
tMnk
We
thirty years
accepting
prison,
to be served
reasoning
equally applicable
that that
is
concurrently
charges.
on those
parole.
restitution as a condition of
findings
The trial court’s fact
that it
state
above,
complainant
As noted
plea proceedings
found that the record of the
instant # 90-10-01225-CR cause is Donna
mention, by
“contains no
either the
or
State
Whatley,
appli-
while the trial court ordered
[a]pplieant, of a
or
fine
restitution to be
pay
cant to
restitution
that cause for the
paid[,]”
judgment, signed by
while the
benefit of Donald Snortland and U.S.A.A.
court,
trial
“indicates that the ‘Total Amount
avers,
Applicant
and the State does not dis-
$10,988.20.”
Restitution/Reparation’
pute,
that neither Donald Snortland nor
findings
The fact
applicant
also indicate that
complainants
any
U.S.A.A. were the
thirty years
was sentenced to
confinement
five
per
cases wMch he was sentenced on
$10,988.20
and further ordered to
resti-
Likewise,
avers,
plea agreement.
applicant
tution,
wMch was itemized as to
dispute,
and the State does not
that Donald
$10,-
the benefit of Donald Snortland and
burgla-
Snortland was the victim of another
738.20 to the
benefit U.S.A.A. The find-
ry, apparently
prosecuted.
which was not
ings also note that
the conclusion of the
“[a]t
Applicant
dispute
also avers without
that the
document,
signed
the trial court has
attorney
assistant district
filed a statement
applicant
applied
right
finger-
Ms
index
of fact form to the Board of Pardons and
print.”
It also
fact
made
wMch Paroles from which it could
that
be inferred
affidavits,
comported
attorneys’
with the two
applicant
captured fleeing
the scene of
including that the sums were included in the
burglary,
the Snortland
and that Mr. Snort-
judgment
gave
and that the
a
State
at
land
some unknown date several weeks
to defense counsel
after the arrest submitted an estimate and
plea.
entering
defendant
The trial court
listing
property missing
itemization
various
requested by
recommended that
the relief
$11,874.50.
valued at
applicant be demed.
facts,
of Martin and these
light
particu-
In
larly that neither Donald
nor
Snortland
III.
complainant in
U.S.A.A. was the
the instant
THIRD-PARTY
ANALYSIS OF
#
cause which
90-10-01225-CR
ordered the
CONTENTION
restitution, we conclude that the trial court
In Martin v.
authority
Since the record showing in cant has not met his burden my negotiations, practice it is “During plea part plea agree- restitution was not Attor- notations in the District to make ment, parte Empey, I 757 dissent. Ex I concerning negotiations. ney’s file 771, (Tex.Cr.App.1988). S.W.2d form that remains use standard 8, pertaining form to the above- February in file. The The facts show that on total restitution numbered cause indicates the 221st Judicial District Court of Mont- total sum for County, with of said gomery applicant pled guilty $10988.20 (enhanced), of Donald Snortland the benefit cause numbers 90-09-01053-CR 90-10-01226-CR, the benefit 90-10-01225-CR, of said total sum for 90-10- my practice to include 1227-CR, It is and 90-10-01228-CR to the of- U.S.S.A. for restitution plea negotiations the sums burglary of a habitation. Pursuant fenses of provided this informa- the victim has bargain agreement, the trial court when to a these sums without thirty years’ tion. I do not include applicant to confine- sentenced counsel, and, informing Department in the Texas of Criminal ment first case, Justice, sums were included charge these Institutional Division for each make restitution to defendant to the defendant the convicted on a trial court’s order that upon regardless release. In the instant of whether the offense the victim of by (h) would not even be bound Board ment’s restitution ate conditions provides imposed, probation and section deciding appropri- entry when paroled or released on if the defendant is applicant’s in the event of release mandatory supervision, the Board of Pardons mandatory supervision. parole or payment of restitu- shall order and Paroles that for offenses committed on or We also note court, tion, by the trial which was ordered 1, 1993, September after Article mandatory supervision. parole or condition of may provides that the trial court order V.A.C.C.P. judgment. (original defendant) given to de- Gary THOMASON, Appellant Dale enter- fense defendant v. added). ing plea.” (emphasis Texas, Appellee. The STATE of hand, other On the defense counsel’s affidavit No. 915-93. only although
states “practice it is his plea negotiations include sums for restitu- Texas, Appeals Court of Criminal tion, Attorney if requires the District it as a En Banc. plea bargain agreement” condition of a Dec. his “records do not indicate that restitution ease,” in this he “not does now relayed recall whether this information was (the
to me or not Assistant District Attor-
ney),” “relayed any and whether he informa- my regarding
tion to client restitution.” added).
(emphasis
A review of the trial record reveals no taking ap-
discussion of restitution in the
plicant’s plea. The trial court’s
fact state that the sums were included in the
judgment gave and that the State
applicant entering plea. trial court
recommended relief be Applicant
denied. has not met his burden to part
show that restitution
agreement.1 parte Empey, 757 S.W.2d at Therefore, relief should denied. Id. majority ignores
Because the the facts and law,
established I dissent.
CAMPBELL, MEYERS, JJ., WHITE and
join this dissent. majority which the defendant is convicted.
1. In the case on which the bases its crime for decision, part (Tex. this Court indicated that as of a 680 n. 16 Martin v. plea bargain may agree a defendant resti- Cr.App.1994). than tution to someone other the victim