Opinion
Nos. 05-03-00066-CR, 05-03-00067-CR, 05-03-00068-CR, 05-03-00069-CR, 05-03-00070-CR, 05-03-00071-CR.
Opinion Filed March 29, 2004. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 194th Judicial District Court Dallas County, Texas, Trial Court Cause Nos. F99-99980-Rlum, No. F99-99981-Rlum, No. F99-99982-Rlum, No. F99-99983-Rlum, No. F99-99984-Rlum, No. F99-99985-Rlum. Affirmed.
Before Justices BRIDGES, FRANCIS and LANG-MIERS.
MEMORANDUM OPINION
Appellant Michael Lee Davis was convicted of five counts of money laundering and one count of securing execution of documents by deception. His punishment was assessed at sixty years in prison for each conviction, to run concurrently, a $10,000 fine in each case, and restitution to the victims in the amount of $3,674,859.59. This court affirmed the convictions, but held that the trial court erred in how it determined the amount of restitution. We remanded for a hearing on restitution only. On remand, appellant asked the trial court to hold a new hearing on punishment in toto and not just on restitution. The trial court denied appellant's motion, and tried the issue of restitution only. Appellant filed this appeal contending that it was error for this court to remand for a hearing solely on restitution. We affirm the judgments of the trial court. Appellant argues that the proper disposition of this case is controlled by art. 44.29(b) of the Code of Criminal Procedure, which states in relevant part:
If the court of appeals or the Court of Criminal Appeals awards a new trial to a defendant . . . only on the basis of an error or errors made in the punishment stage of the trial, the cause shall stand as it would have stood in case the new trial had been granted by the court below, except that the court shall commence the new trial as if a finding of guilt had been returned and proceed to the punishment stage of the trial.Tex. Code Crim. Proc. Ann. art. 44.29(b) (Vernon Supp. 2002). The State cites three Court of Criminal Appeals' cases in support of its position that art. 44.29(b) does not control the issue in the case before us. In Cartwright v. State, 605 S.W.2d 287 (Tex.Crim.App. 1980), the appellant complained that the trial court abused its discretion in setting a certain amount of restitution as a condition of probation. The Court of Criminal Appeals abated the appeal, set aside the restitution order and remanded for an evidentiary hearing to determine the amount of restitution to be ordered paid by appellant. Id. at 288-89. In Barton v. State, 21 S.W.3d 287 (Tex.Crim.App. 2000), the Court of Criminal Appeals held that a remand for a new restitution hearing, rather than a new punishment hearing, was appropriate when the trial court imposed an improper amount of restitution ordered as a condition of community supervision. Id. at 290. In that case, the Court specifically addressed the applicability of Tex. Code Crim. Proc. Ann. art. 44.29(b). The Court stated that "no change was made to the statute to suggest that error regarding a condition of community supervision was to be considered reversible error requiring a new punishment trial." Barton, 21 S.W.3d at 290. In Campbell v. State, 5 S.W.3d 693 (Tex.Crim.App. 1999), the Court of Criminal Appeals held that the trial court incorrectly set the amount of restitution as a condition of parole and remanded the case to the trial court for a determination of the proper amount of restitution as well as the beneficiaries and division of the restitution. Id. at 697. Appellant contends that these cases are different because the restitution ordered in his case was not a condition of either probation or parole; instead, it was assessed as punishment. However, he does not cite authority holding that an improper restitution award in a case such as his constitutes reversible error as contemplated by art. 44.29(b). In fact, in Botello v. State, 693 S.W.2d 528 (Tex. App.-Corpus Christi 1985, pet. ref'd), appellant was assessed punishment at four years in prison and ordered to pay restitution of $2,101.20. When the court of appeals found that there was insufficient evidence to support the restitution award, it did not reverse for a new punishment hearing. Id. at 530. We hold that an improper restitution award does not constitute reversible error as contemplated by art. 44.29(b), and that this court did not err when it remanded the case solely for an evidentiary hearing on restitution. We overrule appellant's only issue. We affirm the judgments of the trial court.