NO. 552-97








                        Johnson, J., filed a concurring opinion in which Meyers and Mansfield, JJ., joined.

C O N C U R R I N G  O P I N I O N

I join the majority opinion as to parts I, II, III and V. However, I concur only in the judgment as to part IV, which I believe misreads the relevant case law and is likely to cause confusion in the lower courts.

I agree that, on the facts of the instant case, the trial court was not limited in the amount of restitution that it ordered by the upper limit of the category of theft to which the defendant plead and was convicted. In holding to the contrary, the Court of Appeals stated that "the amount of restitution must be within the parameters of the verdict." Campbell v. State, 942 S.W.2d 738, 740 (Tex. App.--Houston [14th Dist.] 1997). As support, it cited Green v. State, 880 S.W.2d 797, 802 (Tex. App.--Houston [1st Dist.] 1994, no pet.), which cited Hefner v. State, 735 S.W.2d 608, 614 (Tex.App.--Dallas 1987, pet. ref'd). Hefner's ruling is based on Gordon v. State, 707 S.W.2d 626 (Tex. Crim. App. 1986). The majority finds that the "root" of the Court of Appeals' error is Hefner, which, after a lengthy discourse, it then disavows. Ante, at ___ (slip op. at 9-15). However, in my opinion, Hefner was correctly decided, was misinterpreted by the Green court, and is inapplicable to the instant case.

In Gordon, the defendant, a former sheriff, was charged with violating the civil rights of a prisoner. The indictment contained four paragraphs alleging offenses from causing the prisoner's death through lesser-included offenses down to pulling the prisoner's hair. The jury found appellant guilty only of pulling the prisoner's hair and acquitted on all other charges. Id. at 628. The trial court then ordered him to pay restitution to the victim's family of up to $4,000 for funeral expenses. Id. This Court held that the trial court erred in ordering the defendant "to make restitution for losses caused by an offense for which the jury had found that he was not criminally responsible." Id. at 630.

In Hefner, the jury, given a choice on the verdict form of second-degree felony theft (theft over $20,000) and third-degree felony theft (theft between $750 and $20,000), convicted the defendant only of third-degree felony theft, thereby finding him not guilty of theft over $20,000. Hefner, 735 S.W.2d at 613-614. The trial court probated the defendant's sentence and, as a condition of his probation, ordered him to pay $35,500 in restitution. Id. at 610. The defendant complained on appeal, inter alia, that the trial court erred in ordering him to pay $35,500 in restitution. Id. The Court of Appeals found that although there was a factual basis from which the trial court could determine that $35,500 was approximately the amount required as restitution, Gordon required a finding that the amount of restitution ordered by the trial court was error because appellant had been acquitted of the higher charge and was therefore not criminally responsible for the higher amount. Id. at 614.

The majority initially attempts to distinguish Hefner from Gordon by arguing that in Gordon there was no factual basis in the record for the trial court's order of restitution. Yet, only a sentence later, it cites Gordon for the proposition that because the defendant was acquitted of having caused the victim's death, the trial court was prohibited from imposing restitution based on conduct for which the defendant had been found not criminally responsible. Ante, at ___ (slip op. at 9). It then goes on to state that because the defendant in Hefner was convicted of third-degree felony theft, "the trial court should have been allowed to make its own finding as to the proper amount of restitution once criminal responsibility was assessed for the conduct that underlay the award" and that "[c]onviction by the jury for a certain property-value offense does not restrict the restitution amount that the trial judge might find to be the justified amount." Ante, at ___ (slip op. at 10). Yet, as in Gordon, it was neither the "factual basis" for the restitution nor the jury's conviction that was at issue in Hefner, but its acquittal of Hefner of the offense with the higher value limits. That is, the jury specifically found Hefner not guilty of theft over $20,000. Although the trial court and the appeals court found that a "factual basis" existed in the record for the $35,500 order, the jury had, by its verdict of acquittal, found that such a factual basis did not exist. To order restitution of $35,500 was, therefore, to invalidate the jury's verdict without adequate cause, and indeed, to pick and choose those parts of the verdict with which the court agreed. As we stated in Gordon, 707 S.W.2d at 629, to allow such a "circumvention of the jury's verdict . . . would allow punishment to be imposed for a crime of which appellant was acquitted." Such punishment is clearly prohibited by both of our constitutions.

By way of contrast, in Green the defendant was ordered to pay restitution in the amount of $19,520, which was "within the parameters" of the offense for which he was convicted by a jury, theft over $750.00 and under $20,000.00. Green, 880 S.W.2d at 798-799, 802. The defendant appealed, not on exceeding the statutory limits as is the case here, but on sufficiency of the evidence in the record to support the amount assessed. Id. at 802. The Green court's statement that Hefner stands for the proposition that "[the] amount [of restitution] must also be within the parameters of the verdict" (id. at 802), is dicta and is not supported by the text of Hefner. Nowhere does the word "parameter" appear in Hefner; the blame for that phrase lies with the Green court. See Green, 880 S.W.2d at 802.(1) Instead, Hefner, like Gordon, stands for the proposition that a defendant may not be ordered to make restitution for losses caused by an offense of which a jury acquitted him. Green, however, is clearly distinguishable from Gordon, Hefner and the instant case on both the facts and the law, and is not applicable to the instant case.

In contrast to Gordon and Hefner, in the instant case appellant was allowed to plead to a lesser charge and stipulated to the amounts that he stole from his victims, an amount which exceeded the "parameters" of the offense to which he plead. The state did not assert its right to pursue the greater offense and, at the least, acquiesced in appellant's plea to the lesser charge. This is very different from a jury verdict of acquittal of the greater offense. Under these circumstances, the trial court did not err in ordering restitution based on the stipulated amounts, even if those amounts totaled more than the upper limit of the value range of theft under which appellant plead. On the law and the facts, Gordon and Hefner are inapplicable to the instant case.

The majority asserts that one is never "'criminally responsible' for an amount of restitution," but only "for the conduct that forms the basis for the judge's discretionary award of restitution." Ante, at ___ (slip op. at ___). This is logically unsupportable, as the only difference in "the conduct that form[ed] the basis for the judge's discretionary award of restitution" between the conviction and acquittal in Hefner was the amount of the theft. The majority's statement that "[c]onviction by the jury for a certain property value does not restrict the restitution amount that the trial judge might find to be the justified amount" authorizes contravention of the jury's verdict of acquittal by a trial court when the court finds "a factual basis" for a higher amount. The trial court must do more than "consider" the jury's findings of fact which are implied in the verdict of acquittal; the jury is, after all, the finder of fact, including the property value proved. The trial court is bound by this verdict and the implied findings of fact, and may not substitute its own conclusions for those of the jury. See U.S. Const. amends. V & XIV; Tex. Const. art. I, 14.

In disavowing Hefner, rather than Green's misapplication and misinterpretation of Hefner, the majority has sent confusing signals to our lower courts. As noted above, Gordon and Hefner are legally (and factually) indistinguishable. In both Gordon and Hefner, the defendant was tried by a jury, acquitted of a greater offense, and convicted of a lesser offense. In both, the trial court was held to have erred by ordering restitution for the greater offense. Now, by our disavowal of Hefner but not Gordon, the lower courts will be in a quandary as to the correct approach to restitution in this area of the law. Such confusion need not be introduced into our jurisprudence.

Johnson, J.

Date Delivered: November 10, 1999


1. The statements in Hefner which are closest to the misinterpretation by the Green court are, "However, the verdict and the judgment in the present case indicate that Hefner was acquitted of the offense of theft of greater than $20,000. Accordingly, the trial court abused its discretion in ordering restitution in an amount greater than $20,000." Hefner, 735 S.W.2d at 614 (emphasis in original).