Richard Lawrence Nugent v. The State of Texas--Appeal from 228th District Court of Harris County

Opinion issued October 12, 2006

Opinion issued October 12, 2006

 

 

In The

Court of Appeals

For The

First District of Texas

 

NO. 01-05-00775-CR

 

RICHARD LAWRENCE NUGENT, Appellant

V.

THE STATE OF TEXAS, Appellee

 

 

On Appeal from the 228th District Court

Harris County, Texas

Trial Court Cause No. 1015171

 

 

 

MEMORANDUM OPINION

Appellant, Richard Lawrence Nugent, pleaded guilty to the first-degree felony offense of theft, in an aggregate amount in excess of $200,000.00. See Tex. Pen. Code Ann. 31.01(1)(D), 31.03(a), (e)(7), 31.09 (Vernon 2003 & Supp. 2005). The trial court assessed punishment at ten years confinement, but suspended the sentence and placed Nugent on ten years community supervision. In one issue, Nugent contends the trial court abused its discretion in ordering him to pay $248,621.00 in restitution as a condition of his community supervision. Specifically, Nugent asserts that (1) the record does not support restitution in the amount ordered, and (2) the order requires him to pay restitution to victims of crimes for which he was not charged. The State requests that we modify the restitution order to reflect the trial court s oral pronouncement. We conclude that the trial court did not abuse its discretion and therefore affirm, as modified to reflect the trial court s oral pronouncement.

Facts

Between July 2002 and May 2004, Nugent engaged in a real estate scheme with codefendant Craig Davidson, who is not a party to this appeal. Nugent and Davidson typically located apparently abandoned residential real property owned by unsuspecting third parties. They then would file a false tax deed purporting to convey title to the property to themselves, or to one of their various aliases, in an attempt to obtain color of title for purposes of the Texas adverse possession statute, and would take temporary control of the property. Next, using a special warranty deed, they purported to convey what appeared to be fee simple ownership of the property to an unsuspecting buyer, in exchange for money or a promise to pay money. On their face, the deeds generally appeared to convey full title to the buyers, but a careful reading revealed that the deeds disclaimed any warranty; at most, the deeds conveyed Nugent s or Davidson s interest in an unmatured adverse possession claim.

A grand jury indicted Nugent in February 2005, charging him with theft of money and real property in an amount exceeding $200,000.00. See Tex. Pen. Code Ann. 31.01(1)(D), 31.03(a), (e)(7), 31.09. Nugent pleaded guilty to the offenses within the indictment, which incorporated by reference an exhibit containing the names of those who lost money due to the fraud.

Following Nugent s guilty plea, the trial court ordered the preparation of a pre-sentence investigation ( PSI ) report. At Nugent s sentencing hearing, the State presented testimony of three victims of Nugent s crime; each testified to the losses he or she personally had sustained. The State also presented the PSI report to provide a factual basis for a restitution award to complainants who did not testify at the hearing. The report contains the name of each victim, as well as the dollar amount of loss that each sustained. At the end of the sentencing hearing, the trial court assessed punishment at ten years confinement, ordered the sentence suspended for ten years, and placed Nugent on community supervision. In addition, the trial court imposed certain conditions on Nugent s community supervision. The trial court ordered Nugent to pay $248,621.00 in restitution, and cooperate with the property authorities in helping to obtain clear titles to the properties in question. The trial court also ordered that Nugent was responsible for paying only half of the $248,621.00 because Nugent s codefendant, Craig Davidson, was responsible for the other half.

Restitution Award

In his sole point of error, Nugent contends that the trial court abused its discretion by ordering him to pay $248,621.00 in restitution as a condition of his community supervision. Specifically, Nugent asserts that the evidence offered by the State at the sentencing hearing does not support the amount of restitution awarded by the trial court, and that the trial court s community supervision order requires him to pay restitution to victims of crimes for which he was not charged.

We review challenges to restitution orders under an abuse of discretion standard. 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. ); Cartwright v. State, 605 S.W.2d 287, 289 (Tex. Crim. App. 1980); Tyler v. State, 137 S.W.3d 261, 266 (Tex. App. Houston [1st Dist.] 2004, no pet.). An abuse of discretion occurs if the trial court acts without reference to any guiding rules and principles or acts arbitrarily or unreasonably. Montgomeryv. State, 810 S.W.2d 372, 380 (Tex. Crim. App. 1990); Tyler, 137 S.W.3d at 266.

Texas law provides three limits on the amount of restitution a trial court can order. See Campbell, 5 S.W.3d at 696 97; Tyler, 137 S.W.3d at 266. The amount must be just and supported by a factual basis within the loss of the complainant. Campbell, 5 S.W.3d at 696 97; Tyler, 137 S.W.3d at 266. The restitution ordered must also be for an offense for which the convicted person is criminally responsible. Campbell, 5 S.W.3d at 697; Tyler, 137 S.W.3d at 266. Finally, restitution is proper only for the victim or victims of the offense for which the offender is charged. Campbell, 5 S.W.3d at 697; Tyler, 137 S.W.3d at 266.

The prosecution has the burden of proving the amount of loss sustained by the victims of a crime by a preponderance of the evidence, for the purpose of factually supporting a restitution order. Tex. Code Crim. Proc. Ann. art. 42.037(k) (Vernon Supp. 2005). In support of the restitution order in this case, the State offered the testimony of only three of the victims of Nugent s crime at the sentencing hearing. The State, however, also offered the PSI report at the sentencing hearing, which contained a detailed breakdown of each victim of Nugent s crime, and the amount of loss he or she had sustained as a result. Nugent contends that the PSI report cannot support the restitution award because the report is hearsay. See Cartwright, 605 S.W.2d at 289 (holding that pre-sentence investigation report was hearsay and insufficient to establish factual basis for restitution).

Nugent s reliance on Cartwright is misplaced. Cartwright was decided before the majority rule was embraced by Texas Rule of Evidence 802 which treats hearsay admitted without objection the same as all other evidence in that it is capable of sustaining a verdict. Maloy v. State, 990 S.W.2d 442, 445 46 (Tex. App. Waco 1999, no pet.); see also Tex. R. Evid. 802 ( Inadmissible hearsay admitted without objection shall not be denied probative value merely because it is hearsay. ); Chambers v. State, 711 S.W.2d 240, 247 (Tex. Crim. App. 1986). Nugent did not object to the PSI report as hearsay. Thus, the report is a sufficient factual basis to support the trial court s restitution order.

Nugent further contends that the trial court abused its discretion in ordering him to cooperate with the property authorities in helping to obtain clear titles to the properties in question as a condition of his community supervision. Nugent maintains that this portion of the order requires him to pay restitution for a separate offense for which he was not charged.

Those who sustained losses due to Nugent s conduct fall into two separate categories: (1) those whose titles to real property were clouded by Nugent s scheme, and (2) those deprived of money in payment for the false warranty deeds. The true owners of the real properties involved in this case upon which Nugent filed false liens were injured, as were people who attempted to purchase the real property from Nugent.

The crux of Nugent s argument centers on dividing his crime of theft into two separate offenses: theft of money and theft of real property. Nugent asserts that the trial court s community supervision order not only requires him to pay restitution in the form of money, but also in the form of real property, through the portion of the order that directs him to cooperate with the property authorities in helping to obtain clear titles to the properties in question. Nugent asserts that the State never charged him with theft of real property.

Nugent s argument fails because he incorrectly assumes that his crime of theft is a combination of two separate offenses. Nugent pleaded guilty to the crime of theft of money and real property, in an aggregate amount in excess of $200,000.00. While Nugent s crime involved separate transactions of money and real property, these transactions constitute a continuing course of conduct, involving one common scheme, and comprising only one crime. See Tex. Pen. Code Ann. 31.01(1)(D), 31.03(a), (e)(7), 31.09 ( When amounts are obtained in violation of this chapter pursuant to one scheme or continuing course of conduct, whether from the same or several sources, the conduct may be considered as one offense and the amounts aggregated in determining the grade of the offense. ). The indictment in this case incorporated by reference an exhibit that contains the names of persons Nugent defrauded, and the type of property that Nugent stole from each of them. The provisions of the trial court s restitution order require Nugent to pay restitution only to those listed in the exhibit to the indictment. The trial court s order thus does not require Nugent to pay restitution for offenses for which he was not charged in the indictment.

Finally, the State requests that we modify the written restitution order to conform to the trial court s oral pronouncement of restitution. At the punishment hearing, the trial court orally ordered that Nugent pay $124,310.50 in restitution. The written order setting forth the conditions of Nugent s community supervision, however, requires Nugent to pay $248,621.00 in restitution, but indicates that Nugent s co-defendant, Craig Davidson, is responsible for half that amount. The State asserts that we should modify the written restitution order to clearly reflect that Nugent is only responsible for paying a total of $124,310.50 in restitution. See Ex parte Madding, 70 S.W.3d 131, 135 (Tex. Crim. App. 2002) (holding that trial court s oral pronouncement of sentence controls over written judgment). We agree, and modify the trial court s order accordingly.

Conclusion

We hold that the record supports the restitution ordered by the trial court, and that the trial court s order does not require Nugent to pay restitution for crimes for which he was not charged. The trial court thus did not abuse its discretion in ordering Nugent to pay $124,310.50 in restitution as a condition of his community supervision. In addition, the trial court abuse its discretion in ordering Nugent to cooperate with the authorities in clearing the titles to the real properties at issue in this case, as this provision does not order restitution beyond the amount reflected in the trial court s order and supported by the record. We therefore affirm the judgment of the trial court as modified.

Jane Bland

Justice

Panel consists of Chief Justice Radack and Justices Alcala and Bland.

Do not publish. Tex. R. App. P. 47.2(b).