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Date: 02-19-2021
Case Style:
Aaron Michael Petton v. The State of Texas
Case Number: 06-19-00230-CR
Judge: Ralph K. Burgess
Court: Court of Appeals
Sixth Appellate District of Texas at Texarkana
Plaintiff's Attorney: Tonda L. Curry
Defendant's Attorney:
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Description:
Texarkana, Texas - Criminal defense attorney represented with a Aggravated Sexual Assault charge.
A Van Zandt County jury1
convicted Aaron Michael Petton of two counts of aggravated
sexual assault and assessed a sentence of life imprisonment for each count.
2
The judgment for
the first count of aggravated sexual assault contains an order to pay a total of $5,722.00 in
restitution to the Van Zandt County Criminal District Attorney and Canton Police Department
for forensic testing, which is reflected in the clerk’s bill of costs. On appeal, Petton argues that
the trial court erred in ordering the payment of restitution to a non-victim. Because we agree, we
delete the order to pay restitution from the bill of costs and the first judgment for aggravated
sexual assault and affirm the judgment, as modified. Because it is not the subject of any point of
error in Petton’s appeal, we also affirm the second judgment for aggravated sexual assault.
In relevant part, the Texas Code of Criminal Procedure allows for the trial court, in its
discretion, to order a defendant to make restitution “to any victim of the offense.” TEX. CODE
CRIM. PROC. ANN. art. 42.037(a). “Restitution serves multiple purposes, including restoring the
victim to the status quo and forcing an offender to address and remedy the specific harm that he
has caused.” Hanna v. State, 426 S.W.3d 87, 91 (Tex. Crim. App. 2014). “However, the
legislature has also recognized limits on the right to restitution: . . . it may be ordered only to a
victim of an offense for which the defendant is charged.” Id.
3
1Originally appealed to the Twelfth Court of Appeals, this case was transferred to this Court by the Texas Supreme
Court pursuant to its docket equalization efforts. See TEX. GOV’T CODE ANN. § 73.001. We follow the precedent of
the Twelfth Court of Appeals in deciding this case. See TEX. R. APP. P. 41.3.
2The jury also assessed a $5,000.00 fine on the first count of aggravated sexual assault.
3We recognize that legislative changes not in effect at the time of Petton’s conviction allow a trial court to order that
restitution be paid to a victim’s compensation fund that has compensated the victim. See Act of May 23, 2019, 86th
3
“[D]eletion of a written restitution order is appropriate . . . when the trial judge does not
have statutory authority to impose the specific restitution order.” Burt v. State, 445 S.W.3d 752,
757 (Tex. Crim. App. 2014). “For example, . . . a trial judge does not have authority to order
restitution to anyone except the victim(s) of the offense for which the defendant is convicted.”
Id. at 757–58 (footnote omitted) (citations omitted). Imposition of restitution to someone other
than a victim is a violation of due process. Id. at 758.
Expenses sustained by the Van Zandt County Criminal District Attorney and Canton
Police Department for forensic testing in connection with the investigation of an offense are not
sustained as a result of being the victim of a crime and are not, therefore, subject to a restitution
order. See Jackson v. State, 562 S.W.3d 717, 724 (Tex. App.—Amarillo 2018, no pet.) (“A trial
court has no authority to order a defendant to reimburse the Texas Department of Public Safety
for lab fees as a part of his sentence, and such fees are not properly the subject of a restitution
order under article 42.037(a) of the Texas Code of Criminal Procedure.”) (citing Aguilar v. State,
279 S.W.3d 350, 353 (Tex. App.—Austin 2007, no pet.)); see also Cabala v. State, 6 S.W.3d
543, 546 (Tex. Crim. App. 1999) (“This Court has concluded that the focus of restitution orders
are limited to the individuals alleged and proven to be the victims of the charged offense.”); King
v. State, No. 12-17-00194-CR, 2018 WL 345737, at *1 (Tex. App.—Tyler Jan. 10, 2018, no pet.)
(mem. op., not designated for publication);
4 Uresti v. State, 98 S.W.3d 321, 338 (Tex. App.—
Leg., R.S., ch. 1352, § 4.02, 2019 Tex. Sess. Law Serv. 3982, 4020–21 (eff. Jan. 1, 2020); See also Act of May 21,
2019, 86th Leg., R.S., ch. 469, § 2.14, 2019 Tex. Sess. Law Serv. 1064, 1133–34 (eff. Jan. 1, 2021).
4
“Although unpublished opinions have no precedential value, we may take guidance from them ‘as an aid in
developing reasoning that may be employed.’” Rhymes v. State, 536 S.W.3d 85, 99 n.9 (Tex. App.—Texarkana
2017, pet. ref’d) (quoting Carrillo v. State, 98 S.W.3d 789, 794 (Tex. App.—Amarillo 2003, pet. ref’d)).
4
Houston [1st Dist.] 2003, no pet.) (trial court erred to assess $4,000.00 in investigative expenses
incurred by Houston Police Department as restitution since the Department “was not the direct
recipient of an injury caused by appellant’s crime”)). As a result, the restitution order must be
deleted.
Outcome: We modify the trial court’s bill of costs and first judgment for aggravated sexual assault by deleting the restitution order and to reflect that no restitution is due. See Burt, 445 S.W.3d at 757. As modified, we affirm the first judgment for aggravated sexual assault. Because it is not the subject of any point of error in Petton’s appeal, we also affirm the second judgment for aggravated sexual assault.
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