LaFleur v. State

266 194, (Tex.App. Corpus day 195 she was arrested.

S.W.2d Christi Sufficient evidence — 1991, ref’d). existed for rational trier of fact to find an link appellant, affirmative between the person A if she commits an offense al, drugs. Scotland and the Point of error “knowingly intentionally possesses and two is overruled. controlled substance.” Tex.Health & Safe ty (Vernon 1992). 481.115(a) judgment of the trial court is RE- § Code Ann. care, Possession is defined as actual custo and the cause REMANDED VERSED for a control, dy, management of the sub new trial. Safety

stance. TexHealth & Code Ann. (Vernon 1992). 481.002(38) The evidence affirmatively must link the contraband such that a reasonable infer

ence arises that the knew the sub accused

stance existed and exercised control over it. (Tex.Crim.

Cude v. 716 S.W.2d App.1986). “When an accused is not in possession

exclusive where the LaFLEUR, Jr., Appellant, Dale Louis found, contraband is it cannot be concluded knowledge that the accused had of or con trol over the contraband unless there are Texas, Appellee. The STATE of independent additional facts and circum No. 09-91-292 CR. affirmatively stances which link the ac Cude, cused to the contraband.” Texas, Appeals Court of 47; at S.W.2d Garza Gonzalez Beaumont. 774, (Tex.App. Corpus — Jan. pet.). Christi arresting Here the officers obtained a

warrant to search 713 Scotland and did al 7,May

so on 1991. The officers found four there, persons living three in the room and Drugs one master bedroom. master paraphernalia were found bedroom. utility and a

A letter addressed to Ebert 15,1991, May due on were found on the bill kitchen table. The letter was addressed daughters” at 713 her “and Scotland a3-C utility post-marked May 1989. The (sic) to “Ehert Barbara” bill was addressed A Apt. No. B. vehicle at 713 Scotland registration top form was found on issued to dresser in the master bedroom (sic) 1” at “713 Barbara L. Ebert Scottland expires March 1992. variety perfumes, A of women’s cosmet- ics, top of and in the jewelry were on drugs were found on which the

dresser purse. A Mother’s along a woman’s with wallet, A the dresser. Day card stood on found, too, bearing Harley Davidson closely to the one insignia similar embossed top appellant wearing on the tank

OPINION

BROOKSHIRE, Justice. litigation pertains significantly to This rights. expanding concept the of victims’ guilty of bur- appellant the juryA found to a The record was glary of habitation. had broken appellant the the effect that apart- his ex-wife’s the front door of into A took between ment. confrontation of the ex- appellant and male friend partially off or bit wife. The bit the nose of the male friend. portion off a punishment at confine- jury The assessed a eight years and fine ment for term $1,000. time penitentiary Both the and probated. the fine were appeal appellant concedes that lies judgment sentence from the probation the terms and conditions of imposed by court. The trial court or- probation as a term and condition of dered be made. An that certain restitution $25,000.34. amount was This amount to the Northwestern National Company as reimbursement Life Insurance recoupment expenses paid for company on behalf of the that said The victim had also incurred sub- victim. stantial, expenses that additional medical were insured.

Initially, district court set sen- hearing August for 1991. The tencing pro- to a appellant objected on that date con- posed condition term and companion cerning the male restitution to injury an to his nose. who sustained compan- male maintains that was ion We hold was non-victim. several occasions victim. On sentencing appreci- reset the date. As we record, there were several false ate the hearing final determine on the starts only the payments. We have restitution Halliburton, Orange, appel- C. Grover do not know what part. simply We final lant. prior on dates. position took sentencing was No- subsequent A date of Howard, County Atty., Donna Steve 8, 1991. vember O’Shea, County Atty., Orange, Asst. State. hearing purposes One determine

November to be or- WALKER, C.J., appropriate amount of Before a condition of the BURGESS, as a and as dered term JJ. BROOKSHIRE hearing properly proved by pursuant appellant’s probation. At the been testimony offered detailed from the Tex.R.Crim.Evid. affidavit State Martens, companion in the case. The State Pamela A. the custodian of the male position companion Life In- took the that this male records Northwestern National agree. person Company compliance tes- is in with was victim. We This surance 902(10). 803(6), (7) injuries tified that as a result of the inflict- Rule Rule has been upon by appellant complied him ed he was forced to with. necessary

seek medical attention and medi- There were some additional medical ex- cal treatment. paid penses by which had not been all, major company by part, resulting A but not of the insurance nor the male victim. unpaid in medical bills were Northwestern These bills were contained State’s Company, Again, Life Insurance the in- National Exhibit No. 6. these bills were for carrier which he was cov- damages injuries surance that the victim re- employment virtue of his per- ered situation. ceived as a result of the assault and injuries in sonal this ease. The services of copy, Exhibit One was a be- The State’s plastic surgeon employed. had His been complete, copy, accurate all ing a $1,842.90. bill amounted to This bill came checks that Northwestern National Life In- before the court into evidence without ob- Company had issued and surance honored jection. The record showed that the total expenses medical pay to and cover the amount of the various exhibits and can- companion of the male in connection behalf $27,926.14. celled checks and bills totalled injury. objection with his No was made to the introduction of these documents. The currently The male scheduled visitor was $25,- total of those checks amounted to surgeries for additional further as a result hearing. as of the of the 000.34 date injuries biting of the he received in the surgery his nose. There was an additional However, simply the insurance benefits performed in the finish future to percent did not cover one hundred doing injured It the work on the nose. was expenses companion medical that the male finishing structuring termed to be a companion had incurred. The male surgeons going nose. The were to take a expenses personally. a number of his piece put it of the ear and into the nostril. produced per- He cancelled checks. These procedure This classified as additional represented expenses sonal checks plastic surgery. The male victim stated pay. which the insurance did not Six that he would furnish the future medical in checks were State’s Exhibit No. expenses directly probation depart- to the $1,082.90 These six checks totalled which explanation ment with an of insurance ben- paid directly by compan- the male had been showing in amounts the efits detail what ion. pay in the future would paid by expense An had been $500 person amounts the individual what victim, injured but that check had been in The com- pay would the future. male misplaced apparently during the trial on victim, panion, not cross-examined. the merits of the indicted offense. Howev- testimony. offered no er, statement was offered to show a bank argument check in the amount of of the defense was basi- that cancelled $500. expenses past payable cally made to Methodist that the medical both That check was There was a bill that and future had to be shown be reason- Hospital Houston. expenses No. able and that the medical paid. had not been State’s Exhibits were 3, 4, customary comparable into evidence. to the usual and and 5 were offered bill, or for like hospital charges 4 is the exhibit 5 is the for the services services Exhibit objection at the time and rendered and that the bill. There was no doctor’s Furthermore, necessary. argu- A further the de- treatment was these introductions. proof that for future medical checks and other evi- ment was tailed and numerous Northwestern must be based on reasonable payment made dences perceive appellant probability. have medical We National Life Insurance documentary Crim.App.1988); evi- Jones objection made no pet.). (Tex.App. Tyler nor the State’s exhibits. dence — strictly limited bench not judge out that the pointed After probation terms and conditions cases, civil by the defense were cases cited statute; the trial court enumerated judge order of made an guided by terms and condi is to be such and condition of term approval with Ro Appellant tions. cites required pay- appellant shall be to make mine, Romine, Justice Robert supra. time in the ments at that total amount son wrote: $2,925.80 $27,926.14 payable of which language statutory Nowhere $25,- to the victim and sum of directly provide is legislature the that restitution to Northwestern National payable 000.84 is only crimes. to be made to “victims” of Company. Life The court fur- Insurance only limitation on restitution The as a condition of ther ordered process requirement due that sum appellant responsible that the shall be In “just.” ordered to be be other present expenses and for additional words, sufficient there must be evidence expenses incurred and future medical support in the record to the order. Cart- the victim in connection with this case. State, wright v. 605 S.W.2d at 289. point, objection At there was an this State, recently, in More Gordon rulings findings on the the court’s (Tex.Crim.App.1986), the S.W.2d 626 ground the trial court exceeded its that appeals again court of criminal addressed light jurisdiction in of Tex.Code CRImPROc. payments of restitution ordered the issue 42.12, (Vernon Supp.1992) in Ann. art. 11§ proba- by a trial as a condition of court a 1989 that there was 1987 and amend- pointing out that federal tion. ment that limited the trial court assess- than our state is more restrictive statute only. Ergo, ing restitution to the victim statute, the court stated: appellant avers the insurance carrier was statute, contrast, Texas not the victim and it would be error to expressly not limit the restitution repayment order to the insurance carrier. pay to probationer may be ordered to objection There was a second made that the (sic) only by payment for losses caused had the rules trial court not followed he convict- the offense which was proof in in allowing evidence of medical 6(a)(8)supra. ed. Article 42.12 Giv- expenses past and related both as limitation, express we en lack of expenses. objec- future and the Without upon in instant case to are called tion, by means of an the claims affidavit scope of the statute. interpret the paid by Northwestern National Life Insur- There, the court concluded Id. at 628. ance were made admissible as restitu- incorrectly ordered records. business found tion the accused had been when of- criminally responsible for the not Restitution The Order of payments the restitution fense for which Here, appellant was made. were to be perceive, that appellant, we concedes misapplication fiducia- guilty of found any restitution in the trial court can order Where, here, the trial court ry funds. sum that the court shall determine. totally which was has heard evidence limitation, only appellant argues, that the the other evidence from consistent with just. Ap must to be sum ordered trial find the complainants we named in other pellant his brief writes: “[i]n in or- the discretion court did not abuse words, be sufficient evidence there must (em- restitution to Mr. Assolin. dering support the order.” Cart the record theirs) phasis (Tex.Crim. wright v. 605 S.W.2d 287 to make ordered appellant been 722 S.W.2d Here App.1980); Romine 1986), for medical restitution (Tex.App. [14th Dist.] — Houston curiam, offense for which (Tex. by the per caused ref'd Appellant $25,000.34 convicted. has not and does is not recoverable appeal judgment, not from the establishing company because that his criminal responsibility. Appellant here was not the victim. In an able brief the has been criminally responsible. found appellant traces the enactment of the Tex. 781d, Code CRIM.PROC. first enacted in Under this record pay- the amount of the 1965, to the subsequent pay ments and the order to the same are It pointed amendments. out that just. Axiomatic is concept that original provided article must show that the court they just. are not could order as a term Appellant has brought condition forward the probation that the statement of facts or make the record of the resti- defendant tution underlying reparation in any criminal sum case. In the that the undergirding felony, a court shall jury found determine. The con- guilty of ceded in burglary any his brief that of a such habitation. appellant’s reposed From then glean brief we within the that a ma- sound discretion of jor, admitted thrust of the the trial court. evidence was that LaFleur broke into the front door of Appellant argues 1987 the rele- apartment ex-wife’s por- and bit off a vant section was amended to the effect tion of the nose gentleman of her caller. that a may trial court proba- not order a The jury assessed a term eight years tioner payments to make as a term or a fine, and a both of which probated. were probation fines, condition of except for judge

The trial heard the costs, evidence. He court and restitution to the victim. just acted in a manner. The trial court has We determine his contention is too narrow. properly judiciously determined 15, 1987, Act May R.S., Leg., 70th ch. just State, amount. Cartwright See 939, 3, su 3132, 1987 Tex.Gen. Laws 3133 § pra. amply The record easily (amended demon 1989). The amendment of 1989 strates that just. amounts are No tracks the language identical adding only by abuse of discretion the trial court is that a payment to stoppers a local crime shown. Wooley v. 629 S.W.2d 867 program may be February ordered. Act of (Tex.App. 1982, ref’d); Jones 28, 1989, R.S., 86, Leg., 1, — Austin 71st ch. § supra. 413, Tex.Gen. Laws amended Act of 5, 1990, C.S., June Leg., 25, 71st 6th ch. The Appeals Court of Criminal require 8, 108, 1990 Tex.Gen. Laws 110. Section § ment is that the order and the amounts be 6 of Article 42.12 was renumbered as just and Judge § have a factual basis. Clin 4, 1989, of Art. 42.12 by May Acts of 71st ton in Cartwright wrote: R.S., Leg., 4.17, ch. 1989 Tex.Gen. § Certainly whether to order restitution Laws probation as a condition of is within the sound discretion of the trial court. But Restitution the dollar amount is a matter that the determine,” Restitution 42.12, simply restoring court “shall is Article h, original something owner process V.A.C.C.P. Due lost or unlaw consider- § fully implicated away; loss, ations thus taken require making good for that there injury damage. or must evidence in the record to show that the amount set the court has a sum, relevant, construing the factual basis. governing harmoniously giv statutes Furthermore, at oral ap- submission the ing pragmatic, practical legis effect to the pellant conceded companion intent, that the male lative we hold that the trial court actually paid personally the may amounts of order terms and proba conditions of money tion, that he contended that he had probationer that the shall make resti personally prior to the date of the sentenc- reparation tution or in any sum that the ing hearing. At oral submission court shall just. determine and are Tex. did not right contest the victim’s to recover 11(a)(8), art. 42.12 § Code Crim.ProcAnn. payments. Appellant (b). maintains that interest, (empha- public 11(e)merely provides for bations 42.12 Article § added) program; sis stoppers payment to a local crime (e) not vitiate subsection clearly grant is a munificent 42.12 Article (b). (e) by own 11(a)(8), its Subsection courts. It must empowerment § to Texas 11(a)(8), limit restrict does not or terms accomplish its laudable be construed to (a)(8) (b) (b). Section subsections purposes. obviously express authorizations are principle doctrine and The complain does not statute. discretionary power set out broad into judge district failed take that the (Tex. State, 605 S.W.2d 287 Cartwright v. ability inability to make account his Crim.App.1980). Cartwright payments. ordered to order restitution as held that whether is matter term and condition 56.01(3) art. Tex.Code Crim.Proc.Ann. solely within the discretion of the Thus, only an of that discre court. abuse Appellant places major reliance by an subject to a reversal tion would be in Tex. definition of victim set out argued po appellate appellant’s court. The 56.01(3) (Vernon Crim.Proc.Ann. Code not there is an abuse but sition the defini Supp.1992) and maintains that responsibility is without because he would not include restitution tion victim which he was personal injuries company. Arti an But arises from pay. the abuse ordered 56.01(3) simply applicable or con cle injuries paid for fact were trolling of this offense. carrier and the carrier part by an insurance dispute the does not fact disagree. We repaid. is to be $25,000.34 paid by sum the that the of its on behalf of life the Article 56.01 Revisited and injuries as a result the insured inflict- of Legislation Remedial companion by ap- upon the male the ed Furthermore, of article complete the text pellant. Therein, vic- be considered. 56.01 should person who has suffered tim also means a The Trial Court’s Powers purposes bodily The reasonable injury. significant and It noted and should be legislation legitimate ends of remedial and important granting that the of apply If we to be considered. were are (es- its terms and conditions attendant as the restrict- the contentions of conditions) its attendant terms and pecially or- judge of the trial ing the discretion largely the discretion of matters within are restitution, a con- just then such dering the trial court. Tex.Code Crim.Proc.Ann. crimi- reward a convicted struction would 42.12 is entitled Adult Probation. Arti- of devastating detriment felon to the nal or 1 provides 42.12 that: cle disfig- injured or seriously severely a Also under such person ured victim. purpose this Article to It is the of if vic- construction the appro- limited and narrow of wholly within the State courts died, surviving family those responsibility for tim then jurisdiction the priate ex- pay the sen- who had determining of members imposition when the funeral last medical bills suspended, penses and the shall in certain cases tence repayment. be denied and the disability would probation, the conditions of kin, family could the immediate The next of probationers, in conso- supervision of ill- expenses of the last their recover powers assigned to the not nance with costs of and burial ness, the funeral costs by government of this judicial branch hearing the At the final loved ones. purpose their Texas. It is Constitution objec- in without checks came and the existing from bills to remove this Article or- Judge’s District limitations, ques- We conclude than tion. other statutes the supported compellingly just are have ders that acted constitutionality, tions of pro- by the record. systems as barriers effective Appellant complains that the checks and The victim testified that he had insurance comport respects employer in all the bills did not and that the insur- greater part Texas Rules Civil Procedure. How ance carrier of his ever, However, proceeding. expenses. this is criminal See no insurance (Tex. policy Cartwright 605 S.W.2d 287 was admitted into evidence. Out of Crim.App.1980). perhaps unnecessary precau- As we understood the abundance of tion, the restitution can be made oral submission the amount out di jointly to the carrier and the victim. rectly by companion the male was con ceded to be recoverable him from light of the remedial statutes and the Hence, up point upon appellant. to this precedents decisional it is evident that the this record we affirm the actions and or requirement of some factual for the basis including ders of the district court repayments on the is based rationale probation. terms and conditions convicted criminals or felons have commit- culpable ted acts that are more and blame- However, as to the future bills we con- worthy litigant than the civil found to be clude that is entitled to a negligent. merely Appellant has not been (if desired). hearing hearing That would deprived process protection. of his due opinion. this be consistent with us record before demonstrate opinion dissenting is critical of the providers charged the medical have judge. questions trial The dissenter for non-medical items and then included judge's ordering payments to North- charges these in their bills. dissenter being Life type western National some making is outside of the record appellate exercise. Under the record accusation. judge, justly made before acted We hold: reasonably. registered The victim victim; 1. The male caller was a objection payments being made to National Life Insur- Northwestern National Life Northwestern Insurance ance is entitled to recover its Company. merely The trial court was fol- payments; Life Northwestern National lowing the evidence and documents admit- Company stands Insurance Appellant him. im- ted before failed to victim; shoes of the Northwestern Na- peach Surpris- or contradict this evidence. Company tional Life Insurance is sub- ingly appellant the dissenter notes that rogated in the and substituted of posed question: this the court order “Can claims, the victim with reference to to the victim’s insurance victim; rights demands or of expended money carrier for for medical Life Insurance Northwestern National by Appellant, treatment said carrier?” Company rights succeeds to the of the thus, has conceded that O’Neil is the vic- in relation to the medical claims victim trial appellant, tim. The both at level paid; it here, has conceded that the carrier had Victim, through employment, 3. his ob- expended money the indicated sums of coverage— tained medical insurance medical treatment the victim. for of Northwestern National neither nor candor, “Al- the dissent states: admirable pe- Life Insurance should though Mr. O’Neil was not a victim named foresight; for this the victim’s nalized indictment, question this is academic responsibility of ob- attitude of mature us, question the to since does not encouraged; taining is to be Mr. condition of restitution to advantage cannot take of Defendant O’Neil.” insurance; having proper the victim victim, posture both obvious affirmed with judgment below is money appeal, at trial and on is that the concerning future medical modifications by Nation- that was out Northwestern opinion. out in this bills as set properly payable al Life Insurance is back company. AFFIRMED. to that

273 11(b) Justice, named the indict- WALKER, concurring. sec. victims Chief or information. Id. at 242. There ment with the result respectfully I concur 56, Chapter nor do no mention Martin feel, however, I by majority. reached any portion of I feel the need to include Chapter of Criminal that 56 of the Code analysis of Chapter in a substantive 56 be resorted to as case Procedure1 need not would, I point of error. appellant’s first explicitly spoken to the issue raised law has therefore, point of appellant’s overrule first point in his first of error. by appellant precedential value error based on as to order restitution decision contained there- discussion Martin within lies the sound condition in. Cartwright of the trial court. v. discretion point regard appellant’s second With State, (Tex.Crim.App.1980); 605 S.W.2d 287 error, that on each the record reflects 42.12, sec. Tex. CRIm.PROC.Ann. Code 1 Exhibits tender the State of State’s 11(a)(8) (Vernon Supp.1992). process Due 6, objection. through lodged support requires some factual basis 52(a), has Tex.R.App.P. Under for an responsibility criminal defendant’s complaint re- preserve any with failed to 289; injury. Cartwright, supra Thomp at gard to State’s Exhibits (Tex. 525-526 son Court. review case, appel Crim.App.1977). In the instant observations, I Having the above made variety lant concedes in his brief that a my majori- with the reiterate concurrence into evidence as documents were admitted ty’s judgment and sen- affirmance of the proof by the State of the incurred court. tence of repair Appellant Mr. O’Neil’snose. complain responsible that he not Mr. In injury sustained O’Neil. BURGESS, Justice, dissenting. deed, appellant’s objection at trial assertion Despite Justice Brookshire’s jurisdiction “the exceeds its based on Court “[tjhis litigation pertains significantly 42.12, Procedure, Rules of Criminal Section concept victims’ expanding and 1989 amend ... of the 1987 attempt to charac- despite rights” assessing it limits the Court in resti ments involving reparation terize this case as only, say tution to the victim and we would rehabilitation, fairly simple it is a and/or that the insurance carrier is not the vic fairly simple issues. involving case tim....” I find the case of Martin TO AN INSURANCE RESTITUTION (Tex.App. S.W.2d — Austin CARRIER ref’d) completely point dispositive Martin, (h) pre judge of the In the defendant The trial in condition the issue. among probation required, other the Austin with the identical order sented Court $27,926.14.” Court, things, “Pay restitution of relying issue. The Austin on two by closing cases,2 fully question examined the This condition was clarified other Judgment and paragraph amendments of the court’s by raised the 1987 and 1989 to $27,926.14 to date: court concluded Sentence: “Restitution art. 42.12. Martin $2,925.80 to authority payable holding payable a trial court’s as follows: O’Neil, $25,000.34payable Clayton a ... and restitution as condition order Life,1....” 42.12, is not limited art. to Northwestern National of State, (Tex.App.— 694 Chapter 2. v. 773 S.W.2d of the Texas Code Criminal Garcia 1. 56 1989, pet.); entitled, Corpus v. no and Harrison Christi "Rights Of Crime Vic- Procedure is State, (Tex.App. S.W.2d 760 [14th Contrary appellant places to the slant on tims." it, — Houston 1986, ref'd). pet. Dist.] Chapter import writer views the 56 as this rights privi- recognition expansion of a Why judge route is unclear took this leges the State of Texas affords to individuals type as to be viewed some unless this was injuries physical or mental as a who suffer simply judge appellate could have exercise. The criminal conduct of another." result of “the injured the entire amount ordered appeal issue propriety 11(b) raised on is the decided before section was added to awarding trial court to the CRIM.PROC.Ann. art. 42.12. Tex.Code insurance carrier. That was the same is- State, (Tex. Martin v. 806 S.W.2d 237 brought sue before the court in a “Brief of 1991, App. ref’d) pet. did address — Austin Pertaining Law Court’s Order Resti- this and held that article 42.12 section 23, brief, tution” filed October 1991. That 11(a)(8) any allows restitution in sum noting it response was filed in to the (this 6(a)(8) court directs is the old section 16, 1991, August posed court’s order of 11(b) language) and that the section lan question: “Can the Court order restitution guage only does not limit it to those victims paid to the victim’s insurance carrier However, in named the indictment. money expended for medical treatment court, footnote, Austin in plain makes it it said carrier.” necessarily agree does not with the Harri company son conclusion that an insurance appeals Three other courts of have faced Thus, a victim. contrary position is State, the issue. Jones v. 713 S.W.2d 796 concurrence, Martin is not “com 1986, (Tex.App. Tyler pet.) no held that — pletely point dispositive of the is State, Cartwright (Tex. v. 605 S.W.2d 287 sue.” Crim.App.1980) and Tex.Code CRiM.PROC. fact, question of whether section 42.12, 6(a)(8) (Vernon Ann. Supp. 11(b) limits restitution to victims 1986), probationer “make restitution or named in open.4 the indictment is still reparation any sum that the court shall State, (Tex. Gordon 707 S.W.2d 626 determine”, allowed the payment order of Crim.App.1986) deputy held a sheriff could of restitution to an insurance required pay not be funeral as bill, which citing victim’s medical jury restitution when the him found State, (Tex.Crim. Flores v. 513 S.W.2d 66 guilty only pulling hair, the victim’s App.1974) implicitly approving the order. (this degree third felony, rights was a civil question Flores involved the of whether a case) guilty violation and not of the victim’s judge impose could restitution if he had not murder, a degree felony. first 707 S.W.2d options listed that as one of the jury 629, Judge at Bradley Clinton mentions charge. The court affirmed the trial court. State, (Tex.Crim.App. complained Since the of restitution involved 1972) Judge concurring where Roberts’ an company, the Jones court opinion argued that a defendant should not says implicitly approves restitution to required pay restitution to someone company. reasoning an insurance Its not a Judge victim the offense. Clinton flawed. The appeals court of criminal re also cites Bruni v. 669 S.W.2d 829 jected argument Flores’ non-named victim (Tex.App. pet.). says He — Austin partial facts, because of statement of Bradley rationale of both and Bruni questionable thus is of authority. Jones that when the culpa defendant’s criminal (Tex. Harrison v. 713 S.W.2d 760 bility for a party’s third losses has not been App. ref’d) adjudicated [14th Dist.] it would be unfair to order the — Houston point. is somewhat on It is a condition of pay defendant to for these losses. Bruni parole case which held that the insurance parole was a restitution case. The court important was a victim. An $43,173 dis ordered restitution of to John and Ross, wife, $4,000 tinction between the instant case and Betty both husband and and Jones and Harrison3 is these cases were to Anne Neimann. The state conceded victim and let reimbursement of the insurance 3. There is the obvious distinction that Harrison parole carrier be between the carrier and the insured. is a condition of case while this case is a condition of case. 2.Although Justice Brookshire states: "We sim- ply position Although do not know what the 4. Mr. O’Neil a was not victim named dates.’’, (1) indictment, prior took on it is clear to me question is academic to us, appellant’s prior positions had been question the same since does not the condi- (2) judge recognized this. tion of restitution to Mr. O’Neil. ing requirement be only the is there must ap a was not victim. Anne Neimann for set and They some factual basis the amount affirmed the peals agreed. “just”. must the amount set be Cart husband and jointly the named award to at 289. Justice wright, the amount 605 S.W.2d Chief since the record showed wife no that since jointly was Walker holds appropriated by defendant no spite objections in checks error by the husband and wife cancelled owned only was the owner preserved. the fact the husband named in indictment. Garcia of these resolutions reach Neither (Tex.App. Corpus Christi 773 S.W.2d — position, question presented. Appellant’s parole case. pet.) is a here, must at trial and is there be same followed Bruni and Gordon This case concerning evidentiary standard threshold payment of restitution to disallowed in criminal case as medical restitution a offenses for which the defendant victims of in a recovering there is in medical adjudicated guilty. had not been treatment proceeding, civil i.e. the medical 11(b) pay- limits Whether or not section necessary ex- must have been and the victims, of restitution to named ment penses must incurred have been reason- payment limits to victims. it nonetheless able. not, view, my in insurance carrier was underpinning process is the for Due fulfilling its con- victim. It was either a amounts have requirements that restitution obligation to or it was the victim5 tractual just. a and be reasonable and factual basis a volunteer. Martin, 289; Cartwright, 605 at S.W.2d second Contrary to Justice Brookshire’s require a at To factual 237. holding opinion, his at the conclusion of basis, evidentiary have no standard but such there is no evidence on which base meaningless.6 Civil law process makes due holding. Although Mr. testified a O’Neil negligent and no distinction between makes employer and he had insurance liability intentional tortfeasors inasfar paid portion of his the insurance carrier expenses. The for for medical rationale expenses, policy no insurance medical simple; the evidentiary standard is the civil into evidence. North- admitted Whether for responsible tortfeasor should be reason western National Life Insurance necessary expenses proxi able and of the victim ... is “stands the shoes acts, by his but should mately caused subrogated in the place and substituted responsible other items.7 We should be claims, victim with reference to setting medi the same standard adopt victim, rights ... or demands expense cal restitution. rights in rela- of the victim succeeds noth- paid” claims it tion the medical SUMMARY gross supposition without

ing more than any basis fact. I would: 11(b)

(1) article 42.12 section hold under required THRESHOLD may only THE EVIDENTIARY a defendant victim; MEDICAL RESTITUTION FOR make restitution to carrier is not (2) the insurance appellant’s hold Brookshire dismisses Justice meaning article summarily. within almost victim point of error second 11(b), Code of Texas 42.12 section procedure is a By noting this criminal Procedure; I indicat- Criminal citing assume Cartwright, Martin, everyday experience that medical 7.It is within S.W.2d at n. 4. See provide items providers non-medical often argue Obviously would there are some who 6. their bills. include these lose all criminals should due that convicted protection merit the process and do not same evidentiary protection of non-convicted civil liti- gants. (3) determining what amount of hold just,

medical restitution is the eviden- tiary standard reasonable and neces-

sary expenses; conviction, (4) affirm the but reform the conditions of to delete the payment of restitution to

carrier. my colleagues Since reach other conclu- sions, respectfully I dissent. HENNIGAN, Appellant,

Lois Ann COMPANY, INC., I.P. PETROLEUM Company, and GCO Minerals Inc., Appellees. No. 09-92-032 CV. Texas, Appeals Court of Beaumont. Jan. 1993. Rehearing Denied Feb.

Case Details

Case Name: LaFleur v. State

Court Name: Court of Appeals of Texas

Date Published: Jan 28, 1993

Citation: 848 S.W.2d 266

Docket Number: 09-91-292 CR

Court Abbreviation: Tex. App.