Opinion
NO. 03-19-00375-CR
07-21-2020
Daniel Garcia, Appellant v. The State of Texas, Appellee
FROM THE 426TH DISTRICT COURT OF BELL COUNTY
NO. 78676 , THE HONORABLE FANCY H. JEZEK, JUDGE PRESIDING MEMORANDUM OPINION
Daniel Garcia was convicted of the offense of aggravated sexual assault and sentenced to twelve years' imprisonment. See Tex. Pen. Code § 22.021(a)(2)(B). The trial court ordered Garcia to pay $1,000 in restitution to the Office of the Attorney General. On appeal, Garcia challenges the propriety of the portion of the trial court's judgment requiring restitution. We will modify the trial court's judgment to delete the restitution requirement and, as modified, will affirm the trial court's judgment of conviction.
We review challenges to restitution orders under an abuse of discretion standard. Cartwright v. State, 605 S.W.2d 287, 288-89 (Tex. Crim. App. 1980). In addition to any fine authorized by law, the court that sentences a defendant convicted of an offense may order the defendant to make restitution to any "victim of the offense." Tex. Code Crim. Proc. art. 42.037(a). "[R]estitution is limited to victims who have suffered harm to their person or property as a result of the offense." Hanna v. State, 426 S.W.3d 87, 94 (Tex. Crim. App. 2014). Restitution can be ordered only for an injury resulting from the offense charged and can be made only to the victim, except when "justice dictates payment be made to a person or party who has compensated the victim for the loss." Ceballos v. State, 246 S.W.3d 369, 373 (Tex. App.—Austin 2008, pet. ref'd); see also Campbell v. State, 5 S.W.3d 693, 697 (Tex. Crim. App. 1999) ("Another limit on the authority of a trial court to order restitution is that a trial court may not order restitution to any but the victim or victims of the offense with which the offender is charged.").
In the present case, the trial court ordered Garcia to pay $1,000 in restitution to the Office of the Attorney General to compensate it for reimbursing the Bell County District Attorney's Office for the cost of a sexual assault nurse examiner's (SANE) examination of the victim. This does not constitute a payment to the victim to compensate her for her loss. Rather, it is a payment to the Office of the Attorney General to compensate it for reimbursing the Bell County District Attorney's Office, which paid for the victim's examination by a SANE. The Texas Code of Criminal Procedure provides that "a health care facility that provides a forensic medical examination to a sexual assault survivor [] or the sexual assault nurse examiner who conducts that examination [] is entitled to be reimbursed in an amount set by attorney general rule for [] (1) the reasonable costs of the forensic portion of that examination; and (2) the evidence collection kit." Tex. Code Crim. Proc. art. 56.06(b-2). Such a payment is not one made to compensate the victim for her injury or loss and, consequently the trial lacked authority to order Garcia to pay for the cost of the forensic exam as restitution. See Aguilar v. State, 279 S.W.3d 350, 353 (Tex. App.—Austin 2007, no pet.) (trial court could not order defendant to pay lab fees for testing methamphetamines found in his possession as restitution).
Relying on article 56.06(f) of the Texas Code of Criminal Procedure, the State argues that, to the extent that the examination was "expressly for the benefit and treatment of the victim that was made necessary, not by the investigation, but rather by the appellant as a result of the sexual assault," the payment was a payment made "on behalf of" the victim. See Tex. Code Crim. Proc. art. 56.06(f) ("The attorney general may make a payment to or on behalf of an individual for the reasonable costs incurred for medical care provided in accordance with Section 323.004, Health and Safety Code."); Tex. Health & Safety Code § 323.004 (describing services to be provided to sexual assault survivor arriving at health care facility following alleged sexual assault). As previously stated, restitution may only be paid to the victim or to a person who has "compensated the victim for the loss." See Ceballos, 246 S.W.3d at 373. There was no testimony or other evidence that the victim either paid or was responsible for paying for any part of the cost of the examination conducted by the sexual assault nurse examiner or that the victim incurred any costs associated with the exam. Thus, there was no evidence presented to the trial court that any payment made by either the Bell County District Attorney's Office or by the Office of the Attorney General was to compensate the victim for any loss.
Because the payment by the Office of the Attorney General did not compensate the victim for any loss or injury, the trial court abused its discretion by ordering Garcia to pay the Office of the Attorney General $1,000 in restitution. We therefore modify the trial court's judgment of conviction to delete those portions of the judgment that order Garcia to pay $1,000 in restitution to the Office of the Attorney General. See Burt v. State, 445 S.W.3d 752, 757 (Tex. Crim. App. 2014) (explaining that deletion of written restitution order is appropriate when trial judge does not have statutory authority to impose specific restitution order). As modified, we affirm the trial court's judgment.
/s/_________
Chari L. Kelly, Justice Before Justices Goodwin, Kelly, and Smith Modified and, as Modified, Affirmed Filed: July 21, 2020 Do Not Publish