*1 argues interference Richardson tortious Phillip LEMOS, in- alleging Appellant, contractual relations GAB Ronald by his
terfered with contract with USAA Krenek conspiring attorney with USAA’s is jurat. This claim procure notary Texas, Appellee. The STATE of however, as the law is well groundless, No. 04-99-00279-CR. tortiously in- agent that an cannot settled principal. terfere with contract of its Texas, Appeals Court Skinner, Holloway v. See San Antonio. (Tex.1995). original Richardson’s acted petition, acknowledges he that GAB June 2000. adjuster duly a claims for USAA as Discretionary Review Refused representative. The agent authorized Nov. 2000. summary properly granted
trial court this overrule judgment ground on and we
Richardson’s second issue. inflic
Richardson intentional claims issue, in his third
tion of emotional distress in procurement judgment
fraudulent issue, conspiracy fifth fourth his asserts, correctly absolute
issue. As GAB re preclude our
privilege limitations about of these claims. The conduct
view namely the complains, Richardson allegedly
introduction into evidence jurat, took
fraudulently-procured notary In this judicial proceeding.
place during
context, are barred claims Her absolute privilege.
doctrine of Hayes,
nandez v. denied).
(Tex.App.-San writ complaints sur
Additionally, Richardson’s jurat are allegedly fraudulent
rounding Spe by the statute of limitations.
barred the record an affidavit
cifically, contains acknowledged Richardson wherein he
from notorized knew
that he form be used USAA
proof might of loss coverage. Accordingly, limit his
at trial to review, filed
Richardson’s bill claim, pre
which centers around limita two-year four-year
cluded Prac. & period. See Tex. Civ.
tions Rem. 1986). 16.003,16.004 §§ Code third, fourth, Richardson’s
We overrule judgment of
and fifth issues affirm
the trial court. *2 court,
On to this the conviction was grounds reversed and remanded on the that a improperly confession was admitted. 04-94-00696-CR, See Lemos No. *3 1996 (Tex.App.-San WL 311881 1996). The second trial resulted in a con- viction for aggravated robbery, again with finding used a firearm. Lemos jury years proba- recommended ten $10,000 tion with a judge fine. The sen- tenced Lemos in accordance with the ver- dict, and ordered restitution as a condition probation. of The Restitution Order appeal, challenges only Lemos Tinker, Christi, Douglas Corpus ap- for imposed by the restitution the trial court pellant. probation. Specifically, as a condition of Garza, Atty., Rolando Asst. Dist. Lare- challenges following provisions the do, appellee. for of the court’s restitution order: HARDBERGER, PHIL Sitting: Chief you It is the order of the that ... Court Justice, STONE, Justice, CATHERINE period during your shall shall of DUNCAN, SARAH B. Justice. probation: Pay through 13. the Webb OPINION County Supervision Community & Cor- STONE, Opinion by: CATHERINE Department rections to Mrs. Juanita Justice. n $25,188.00 Flores in the amount of appeal presents This the issue of who expenses and losses incurred as a result qualifies as a victim under Texas’ restitu- of this action.... tion statutes. We are also asked to deter- family 24. Subsidize the decedent’s due type monetary damages may mine what of of income at rate of $180.00 loss subject Ap- of a restitution order. years through month for the next ten (“Lemos”) pellant Ronald Lemos chal- County Community Supervi- the Webb lenges propriety trial Department sion and for a Corrections community supervision order which Le- $21,205.00. total of mos was ordered to three distinct responsible any therapeutic 25. Be $48,393. totaling amounts of restitution necessary for the mental services well We reform the trial court’s order to delete being up of the victims in this case $22,150 restitution, payment $1,000.00 aby pro- each as determined reformed, we affirm trial court’s provider.... fessional mental care order. sentencing hearing, From the it is evident Background
Factual Procedural $25,188 para- amount ordered in that the fu- graph represents for Flores’ Lemos was indicted for the murder Flores, expenses, for ambulance and neral Benjamin aggravated Jr., medical costs incurred Mrs. proprietor grocery of a Laredo perishable goods from the jury store. The returned a verdict of not the restitution ordered guilty murder on store. guilty charge, on the but contemplates a maximum robbery charge, paragraph with no $2,000 $1,000 each for Mrs. finding deadly weapon. payment that Lemos used a — Okazkai, D. they sating Flores and victims.” Note & her adult should Neil Comment, People Insuring decide in the to seek mental health Sexton: an future therapeutic Through At the sentencing services. Absurd Result Inter- Inflexible hearing stipulated accuracy Appeal Denies pretation -The Court of amounts; he did agree, not how- Criminal To Victim’s Insur- ever, Loy. that the could order ance L.A. L.Rev. Company, (1997). him pay application these amounts as of restitu- restitution. Liberal however, statutes, tion must be balanced Standard Review process requirement of “a fac- the due challenges We review to restitu tual in the for the amount of basis record tion orders under an abuse of discretion restitution ordered.” Martin v. *4 Cartwright standard. 605 S.W.2d (Tex.Crim.App.1994). (Tex.Crim.App.1980). 288-89 The competing Faced with consider- these court abuses its discretion when it acts ations, analysis propri- we our of the begin arbitrary an or unreasonable manner. ety guidance of the instant order under the Montgomery v. 380 of relevant statutory provisions. The Tex- (Tex.Crim.App.1990). The court of crimi as constitution crime the grants victims appeals nal three recognizes limits on the I, Const, right to restitution. art. Tex. that a amount of restitution trial court can 30(b)(4). § The constitution does not de- order. Campbell “victim,” specifies fine term but (Tex.Crim.App.1999). First, Legislature may define term so as just, the amount must be and it must to rights enforce the of crime victims. Id. supported by a factual basis within the loss 30(c). §at Second, of the victim. Id. the restitution Legislature The has enacted two res- ordered must be for the offense appeal. titution statutes relevant criminally the defendant responsible. is First, article 42.12 of the Texas Code Third, Id. proper only restitution is for the provides of Criminal Procedure victim or victims of the offense with which community supervision framework for the offender is Id. A trial charged. and impose authorizes the trial court to failure to by guiding abide rules is of community restitution as condition an abuse of discretion. supervision. provides: The statute (a) juris- The court judge having Guidelines diction of the shall case determine the of inclusion restitution in the community supervision of conditions justice criminal system is viewed as an may any ... impose reasonable condi- effort goals: to achieve three rehabilita protect tion that designed or re- tion, deterrence, compensation. Linda protect store community, or restore Frank, F. The Collection Restitution: of victim, rehabilitate, punish, or or An Service Overlooked to Crime Vic Often reform the defendant. Conditions of tims, Legal 8 St. John’s J. Comment. community supervision may include ... (1992). tool, As a rehabilitative resti conditions that the defendant shall: tution forces defendants realize the (18) general Reimburse the revenue causal relationship between their criminal any paid fund for amounts from that conduct and the victim’s loss. Id. victim, by fund to a as defined Article restitution can provide victim with code, of this defendant’s “material and psychological realization sat offense ... interpretation isfaction.” Id. A broad provides judges restitution statutes
“greater effectuating opportu discretion in (20) criminals, rehabilitating Pay part nities for all of the reasonable deter or ring harms, efficiently compen- by future incurred necessary costs psychological counseling expenses proper
victim for that funeral are not a subject ... in this because necessary by made the offense case only rob- he was convicted (b) judge may A not order a defendant bery. that he cannot be Lemos claims any payments to make aas term or for Flores’ funeral ex- ordered community supervision, condition ex- penses because he was not convicted of fines, costs, cept for restitution to death, causing Flores’ as evidenced the victim .... acquittal charges on murder Tex.Code ÜRim. Proo. Ann. art. 42.12 jury’s that Lemos used a refusal to find 11(a),(b) § Supp.2000) (emphasis Contrary argument, firearm. to Lemos’ added). jury’s failure find that he used or Second, guide- article 42.037 addresses dispositive exhibited a firearm is not provides lines for restitution orders and this issue. that: can be aggravat- The offense ( n ) any In addition to fine authorized (1) deadly weapon ed if is used or exhib- law, the court that sentences defen- (2) ited, bodily injury serious is caused. dant convicted of an order offense (Ver- 29.03(a)(1),(2) Tex. Pen.Code *5 any the defendant to make restitution to 1994); non Blount victim the offense. (Tex.App.-Houston [1st Dist.] 363 n. 3 injury in- pet.).1 bodily no Serious injury that cludes “creates a substantial ” risk of death or that causes death.... (i) may proba- ... a require [T]he court aggravated the death of an Accordingly, tioner to reimburse the crime victims robbery consequence aggra- victim is a compensation any fund ... amounts is robbery vated for which the defendant paid that fund from to victim criminally responsible. probationer’s offense. this subsec- tion, assigned the meaning “victim” has In the instant case the indictment com- by Article 56.01 of this code. aggravating the first two elements bined Lemos, charged acting that while 42.037(a),(i) art. Ann. Tex.Code Crim. Proo. co-defendant, Silva, his committed added). (Vernon Supp.2000) (emphasis exhibiting aggravated robbery by using or community supervision statute Neither the bodily injury serious causing firearm and nor the restitution statute defines the term charge to Flores. The court’s tracked this “victim” other than the reference to article jury that it language and instructed the Article in turn defines a “vic- 56.01. conduct, for his own could convict Lemos person tim” as “a who is the victim of parties the law of for Silva’s or under assault, kidnapping, aggravated sexual or (of exhibiting deadly weapon conduct bodily injury or who has suffered causing bodily injury serious while criminal conduct or death as a result of the committing robbery). jury’s course 56.01(3). at art. With of another.” Id. finding aggravated that Lemos committed mind, we review the this framework firearm, robbery, but that he did not use a trial court’s restitution order. that implicitly jury means convicted Expenses Funeral parties under the law of for Silva’s Lemos Flores died as a result part appeal, of his first issue on conduct. Since As death of robbery, and since aggravated trial court erred or argues statutorily-recog- within the for Mr. the victim is dering payments robbery, consequences nized expenses. Lemos claims Flores’s funeral (Ver- 29.03(b) involving aggravating bodi- case. See Tex. Pen.Code 1. A third element ly injury person years 1994). or older or to a old non alleged person was not in this to a disabled portion of the Apparently a substantial trial court ordered Lemos inventory spoiled follow- pay expenses. perishable for Flores’ funeral store’s argued by the State ing Flores’ death. As sentencing record sentencing hearing, at Mrs. Flores was not dis- hearing reflects that Lemos did distraught after her husband’s death too for Mr. pute responsibility pay perishable invento- tend to the store or its expenses. Flores’ funeral When discuss- ry. within expenses the various included ing order, Le- portion of the restitution gov- is property damage object that “I do mos’ counsel stated 42.037(b). TexUode Crim. erned expenses far the funeral everything so but 42.037(b)(Vernon Supp. PROC. ÁNN. art. that for Mr. Flores.” He later stated 2000). provides court with The statute given [Flores’] “should be to his options when the offense results in several circumstances, estate.” Under the loss, of the victim’s damage, or destruction Tex.R.App. P. complaint. waived his property. may prop- The court order the 38.1; Gaines owner, if to the or that is not erty returned (Tex.App.-Dallas pet.) (recogniz- possible, the court order the defen- timely object and obtain ing failure property. for the value of the dant to preserves ap- ruling nothing adverse 42.037(b)(1)(A). Id. at art. A restitution review). pellate property damage proper only order for Ambulance & Medical Fees property damage when the or destruction at art. is a result of the offense. Id. Included within the restitution or 42.037(b)(1). expenses in der of are the amount for ambulance and medical fees is not Property damage destruction *6 Testimony at incurred Mrs. Flores. necessarily consequence of trial revealed that Mrs. Flores entered the undisputed in that robbery. It is this case robbery, store unaware of the found damage during did not occur property the her mortally husband wounded on the aggravated robbery. the commission of the floor. became distraught She was Indeed, appears damage it that the oc- transported by hospi ambulance to a local (and days possibly the during curred tal where she was treated. On weeks) following death. the Flores’ Since Flores, complains that Mr. not Mrs. record does not establish that the restitu- crime, was victim of his tion is for the offense for which Lemos that he cannot pay be ordered to restitu criminally responsible, the trial complaint, tion to a non-victim. This like in ordering abused its discretion restitu- complaint regarding expenses, funeral perisha- tion in the amount of has At sentencing been waived. hear State, 707 goods. ble See Gordon ing recognized Lemos’ counsel that 626, (Tex.Crim.App.1986). S.W.2d expenses were immedi “[t]hose incurred Therapeutic Services ately after these events and as a result of I think these events and so the Court objects provi Lemos also probably including would be in correct awarding sion of the order in I figure the restitution. with therapeutic services for Mrs. Flores my objection draw to that.” Under these of the restitution daughter. her This item circumstances, the trial court did not of specifically presents question order abuse its discretion. Mrs. Flores and her whether of qualify statutory victims the offense. Perishable Goods Crim. Proc. Ann. art. 42.037 See Tex.Code ap trial court objects provision Supp.2000). to the of Mrs. Flores and her requiring parently the order him to determined as victims of the instant perishable goods grocery daughter qualified from the store. 48 (b) correctly ap- §
offense. Whether the court
subsection
[of article 42.12
11]
plied
statutory
definition
“victim” to
serves as a limitation on the restitution
parties requires
these
an examination of
that can be ordered under subsection
(a).
(a)
a question
restitution statutes and is
Subsection
forth a
sets
broad
law which
grant
authority, providing
we review de novo. See arts.
that a court
42.12,
variety
42.037.
order a
of terms and condi-
probation,
including
tions
a condition
undergone
The restitution statutes have
that the defendant make “restitution or
1987,
extensive revisions. Prior
in
reparation
any sum the court shall
only limitation
aon
restitution order was
(b), however,
determine.” Subsection
“just”
that it be
with a sufficient factual
imposes
types
pay-
limitations on the
basis in the record. Romine v.
722
ments that
can
ordered as condition
(Tex.App.-Houston
S.W.2d
[14th
probation, providing
payment
no
1986),
curiam,
pet.
per
Dist.]
ref’d
can
except
be ordered
“restitution to the
(Tex.Crim.App.1988);
S.W.2d 382
see Cart
victim”
pay-
and certain other identified
wright,
49 (Tex. 442, criminal aggravated 444 ters of 990 Maloy v. S.W.2d —the was convicted. activity for which Lemos App.-Waco pet.); generally no see M.S., (Tex.App.- 279 lost income exist re awards for S.W.2d Despite this Richard- pet.). estate. Corpus Christi for a deceased victim’s (Tex. expansion, under the current very limited son v. S.W.2d d). 42.12 or article Accordingly, of either article pet. versions ref App.-Tyler 42.037, Flores, victim, the same conclusion— courts reach Mr. earnings of the the lost only for those direct vic- restitution exists subject the restitution proper were offense for which the defendant tims of the provides that Although the statute order. charged and convicted. was victim are to to a deceased damages owed estate, although to the paid victim’s of these cases to Applying the rationale establishing Mrs. there is no evidence here, reach sever the restitution order we representative of her hus- Flores as the First, al while Mrs. Flores conclusions. estate, object at trial Lemos did not band’s daughter undoubtedly have suf and her that Mrs. Flores failed or on tremendously from the senseless fered repre- as the estate’s establish her status statutory under the death of Mr. restitution, sentative. qualify fail to they scheme Admittedly, Mrs. Flores and as victims.
her
are indirect victims
Conclusion
not, however, recipients
They
crime.
were
upon
facts of this case and the
Based
activity
criminal
which Lemos
for
statutes,
hold that
the trial
relevant
we
Gonzalez,
charged
was
and convicted. See
in the
ordered restitution
(holding
at 106
that restitution
S.W.2d
$2,838
expenses,
for funeral
amounts
charged
is limited to results of offense
services,
$2,200 for ambulance and medical
victim).
payable only
only
statuto
lost income. The trial
for
aggravated
victim
rily-recognized
however,
discretion,
court abused its
charged
robbery for which
was
in the amounts of
ordering restitution
Accordingly,
Mr. Flores.
convicted was
perishable goods
up
misapplied
we
that the trial court
hold
re-
therapeutic
services. We
scope of the definition and erred in award
trial
order to reflect
form the
daughter restitu
ing Mrs. Flores and her
community supervision that
condition 13 of
therapeutic expenses.
Put differ
tion
in the amount of
ently,
expenses were not incurred as
$5,038,
condition 25 of com-
and we delete
robbery.
a direct result of the
reformed, we af-
munity supervision. As
(Tex.
See Cabla v.
firm
of the trial court.
the order
—
denied,
Crim.App.1999), cert.
U.S.
*8
-,
1730,
120 S.Ct.
for lost income to Mr. Flores’ wife and
daughter, rather than Mr. Flores’ es-
tate. perishable
As to restitution for the services,
goods therapeutic the State
failed to meet its “burden of demonstrat- ing the amount of the loss aby sustained ” victim as a result offense.... Tex. BUSTAMANTE, Appellant, Josie 42.037(k) (Ver- art. PROC. Ann. Code Crim. Supp.1999). non There is no evidence es- tablishing joint Mrs. Flores was owner of BEXAR COUNTY SHERIFF’S CIVIL lost, perishable goods; goods were SERVICE COMMISSION Sheriff damaged, destroyed or as a result Ralph Lopez, Appellees. convicted; conduct for which Lemos was No. 04-99-00175-CV. therapeutic “necessary” services were years nine after Mr. Flores’ death. See id. Texas, Appeals Court of 42.037(b)(1)(B), (b)(2)(A); art. Martin v. San Antonio. (Tex.Crim. 682 n. (“[T]he App.1994) complainant may named June 2000. always only
not be the victim of the crime Rehearing Overruled June 2000. adjudicated. See Bruni v. (Tex.App. —Austin (restitution pet.) ordered to complainant both named and his wife joint money
where wife was owner of de- appropriating.)”);
fendant was convicted of
Gordon v.
(Tex.Crim.App.1986) that “the tri- (holding authority
al court without ... to order [is]
appellant to make restitution for losses jury
caused an offense for which the criminally responsi-
had found he was not
ble”).
Because this can be decided on
procedural grounds, I do not follow the
majority holding down the road of 42.037(b) permits only direct results and victims.
compare Tex. Code Crim. Proc. art Ann. (distinguishing “[v]ictim” between victim”) a deceased “[c]lose relative of 57.001(3)(Ver- Tex. Fam. Code 1999) (“ person Supp. non Victim’ means delinquent
who as the result of the conduct pecuniary per-
of a child suffers a loss or harm.”). injury Perhaps
sonal reserv-