David Anthony Lockett v. the State of Texas

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-23-00736-CR

David Anthony Lockett, Appellant

v.

The State of Texas, Appellee

FROM THE 20TH DISTRICT COURT OF MILAM COUNTY
NO. 28,082, THE HONORABLE JOHN YOUNGBLOOD, JUDGE PRESIDING

MEMORANDUM OPINION

Appellant David Anthony Lockett pleaded guilty to assault on a peace officer

pursuant to a plea agreement. See Tex. Penal Code § 22.01(a)(1), (b)(1). As part of the

agreement, the State consented to the trial court’s consideration of two unadjudicated offenses

during a hearing to determine the amount of restitution owed by Lockett to Tykeisha Walker, the

victim of the unadjudicated offenses, and dismissed two additional charges for offenses allegedly

committed by Lockett against Walker. See id. § 12.45(a) (barring prosecution for unadjudicated

offenses considered during sentencing hearing with State’s consent). Following three hearings,

the trial court ordered Lockett to pay $2,809.10 in restitution to Walker. The trial court gave

Lockett permission to appeal its restitution order. See Tex. R. App. P. 25.2(a)(2)(B) (authorizing

appeal with trial court’s permission in plea-bargain case). In two issues, Lockett contends that

the trial court abused its discretion in determining the amount of restitution because the amount
encompassed losses (1) resulting from the dismissed charges and (2) that were not proximately

caused by him. We affirm the trial court’s restitution order.

BACKGROUND

During the restitution hearings, the trial court considered two unadjudicated

offenses—for which Lockett admitted guilt as required by subsection 12.45(a)—committed

against Walker: continuous family violence (trial court cause number CR27,979) and repeated

violation of a protective order (trial court cause number CR27,980). See Tex. Penal Code

§§ 12.45(a), 25.11 (setting forth elements of continuous violence against family), .072 (setting

forth elements of repeated violation of certain court orders in family-violence case).

Walker, the State’s only witness, testified during the first and third hearings about

expenses she incurred as a result of Lockett’s actions. 1 She and Lockett were in a relationship

for almost five years, and she was “the victim in several cases involving” him. The losses for

which she sought restitution arose from items that Lockett stole or broke as well as her need to

stay at hotels and buy new clothes “while he was stalking [her].” She testified, “Every time I

tried to go home, he would chase me and I had to go on high[-]speed chases from him[,] and I

was not allowed to go home.”

As proof of Walker’s expenses, the State at the first hearing offered—and the trial

court admitted into evidence—her bank statements from “her time with” Lockett. She identified

various listed charges, including ATM withdrawals and Cash App payments, as being for either

hotel rooms, clothes for her and her son, or personal-hygiene products. All of her purchases

stemmed from “incidents caused by Mr. Lockett that made [her] unable to go to [her] home and

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Lockett was unable to appear at the second hearing, which was consequently reset.
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so [she] either had to stay at a hotel or buy things because [she was not] able to get items from

[her] home.” She also spent $145.64 for a new phone because Lockett “literally called [her]

phone 24/7 around the clock.” In total, she requested $2,890.14 in restitution.

As the first hearing concluded, the trial court on its own motion continued the

proceeding to allow the parties to obtain subpoenas because the court was “concerned about the

quality of the evidence that’s been admitted in terms of proving exactly what was spent.” The

trial court addressed Walker:

I can see not wanting to live in your house while this is going on, that’s a
reasonable concern. But it could have been easily set up to have an officer
accompany you to the house and get your clothes and the personal items and what
not, food, having to go buy new clothes for yourself and the child, that’s a stretch
of reasonableness in my mind, so going forward, y’all can do with that what
you will.

At the start of the third hearing, the State announced that it had obtained Walker’s

hotel bills, which the prosecution represented totaled $2,809.10. Defense counsel objected and

responded that he had received three affidavits from hotels purportedly averring that Walker’s

name had not been found in their records. Neither the bills nor affidavits were admitted

into evidence.

Walker testified about the bills, which she had gotten from the WoodSpring

Suites in Killeen, Texas—an hour’s drive from her house—and which reflected the dates on

which she had stayed at the hotel. She stayed at the hotel “each night on the[] records” because

she was “afraid for [her] life” and feared that if she went home, Lockett “was going to kill [her]

or set [her] house on fire with [her] in it or who knows.” Although she stayed at the hotel on

December 5, 2021, she was at her house around midnight to pick up clothes because she “didn’t

have any money to buy any[ ]more” and hoped that Lockett would be sleeping.
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Haywood Sawyer, a criminal-defense investigator, testified about his

investigation on Lockett’s behalf. Sawyer testified that he had spoken with the manager of the

WoodSpring Suites in Killeen and had served subpoenas to both the Comfort Inn and Regency

Inn but did not “leave with any records.” On cross-examination, he testified that he did not

know when the people with whom he spoke began working at their respective hotels or whether

Walker had checked into the hotels using a pseudonym.

The trial court ordered Lockett to pay Walker $2,809.10 in restitution, and

Lockett filed a motion for new trial challenging the restitution amount. The trial court held a

hearing on the motion, at which defense counsel argued that “the amount of the restitution

awarded included offenses the defendant was not criminally responsible for” and that the State

had failed to meet its evidentiary burden and “establish proximate cause.” The State replied that

the full restitution amount “was from the hotel expenses” and that it had been reasonable for

Walker to “need to leave her home in order to be safe and stay at these hotels while the case was

going on.” Asked by the trial court to address defense counsel’s argument “that a portion of the

restitution . . . related to cases that were dismissed,” the State answered:

Mr. Lockett had a lot of cases against this same victim. One of the cases and I
don’t have all of them in front of me but one of the cases, he either pled or
admitted his guilt on under 12[.]45 was a stalking charge and/or continuous
family violence that covered all of these hotel dates. Now, yes, the other
incidents happened in that range but the stalking that overall he admitted his guilt
to is covered, that all of the hotel stays were all within the date range that
was alleged.

The trial court denied the motion for new trial. This appeal followed.

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DISCUSSION

Lockett contends that the trial court abused its discretion by ordering that he pay

Walker $2,809.10 in restitution because the amount included losses “for cases that were

dismissed against [him]” and “that were not proximately caused by [his] criminal acts.” 2

I. Standard of Review

For purposes of Texas’s principal restitution statute, article 42.037 of the Code of

Criminal Procedure, a “victim” means “any person who suffered loss as a direct result of the

criminal offense,” a phrase incorporating “the notion of both actual and proximate causation.”

Hanna v. State, 426 S.W.3d 87, 94–95 (Tex. Crim. App. 2014); see Tex. Code Crim. Proc.

art. 42.037(a), (c)(1). Due process imposes additional limitations on a trial court’s ability to

order restitution:

(1) the restitution ordered must be for only the offense for which the defendant is
criminally responsible; (2) the restitution must be for only the victim or victims of
the offense for which the defendant is charged; and (3) the amount must be just
and supported by a factual basis within the record.

Burt v. State, 445 S.W.3d 752, 758 (Tex. Crim. App. 2014).

We review a trial court’s restitution order for an abuse of discretion. Fuelberg

v. State, 447 S.W.3d 304, 317 (Tex. App.—Austin 2014, pet. ref’d) (citing Cartwright v. State,

605 S.W.2d 287, 289 (Tex. Crim. App. 1980)). An abuse of discretion does not occur unless the

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Lockett’s first issue—which concerns the appropriateness of the trial court’s restitution
order and article 42.037’s requirement that property-loss restitution be for losses resulting from
an adjudicated offense—is distinct from a sufficiency challenge. See Tex. Code Crim. Proc.
art. 42.037(c)(1), (k). Lockett raised three issues in his motion for new trial: (1) “the amount of
restitution awarded included offenses for which the Defendant was not criminally responsible,”
(2) “the State was unable to meet its evidentiary burden of a preponderance of the evidence,” and
(3) “the State failed to establish proximate cause.” Only the first and third issues were raised and
briefed on appeal.
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trial court acts “arbitrarily or unreasonably” or “without reference to any guiding rules and

principles.” State v. Hill, 499 S.W.3d 853, 865 (Tex. Crim. App. 2016) (quoting Montgomery

v. State, 810 S.W.2d 372, 380 (Tex. Crim. App. 1990)). In other words, we may not reverse the

trial court’s ruling unless the “decision falls outside the zone of reasonable disagreement.”

Johnson v. State, 490 S.W.3d 895, 908 (Tex. Crim. App. 2016). Failure to adhere to the three

limitations identified by the Court of Criminal Appeals is an abuse of discretion. Lemos v. State,

27 S.W.3d 42, 45 (Tex. App.—San Antonio 2000, pet. ref’d).

II. Dismissed Offenses

In his first issue, Lockett contends that the trial court abused its discretion by

ordering restitution for losses accrued by Walker from the two charges that were dismissed as

part of Lockett’s plea agreement. 3 Specifically, he argues that the trial court ordered restitution

to reimburse Walker for staying at hotels on dates that fell outside those alleged in the

indictments for the offenses considered under section 12.45 but inside the dates alleged in the

indictments that were dismissed.

We conclude that Lockett has failed to present a record demonstrating that the

trial court abused its discretion by ordering restitution resulting from dismissed charges.

3
Lockett does not contest the trial court’s statutory authority to order restitution for
offenses to which he admitted guilt under section 12.45. See Tex. Penal Code § 12.45(a). This
issue has seemingly never been directly addressed by a Texas court. However, the Court of
Criminal Appeals has stated in dicta:

Nor may a trial court, without the agreement of the defendant, order restitution to
other victims unless their losses have been adjudicated . . . . Losses caused by
unadjudicated offenses that a defendant has admitted and requested the court to
take into account, see id. § 12.45, may be regarded as adjudicated.

Campbell v. State, 5 S.W.3d 693, 697 & n.9 (Tex. Crim. App. 1999). We need not decide the
issue in this case. See Tex. R. App. P. 47.1.
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See Newman v. State, 331 S.W.3d 447, 450 (Tex. Crim. App. 2011). As the appellant, Lockett

“carries the burden to ensure that the record on appeal is sufficient to resolve the issues

presented.” Williams v. State, 662 S.W.3d 452, 464 (Tex. Crim. App. 2021); see Davila v. State,

623 S.W.3d 1, 11 (Tex. App.—Austin 2020, pet. ref’d) (“Our law ‘imposes . . . [a] burden on the

appealing party to make a record demonstrating that error occurred in the trial court.’” (quoting

Davis v. State, 345 S.W.3d 71, 77 (Tex. Crim. App. 2011))). “The failure to provide a sufficient

appellate record precludes appellate review of a claim.” London v. State, 490 S.W.3d 503, 508

(Tex. Crim. App. 2016).

The record in this case is insufficient to compare the dates of Walker’s hotel stays

for which the trial court ordered restitution with the dates of the indictments for the dismissed

offenses or offenses considered under section 12.45. Neither Walker’s hotel bills, Lockett’s

affidavits, the indictments from the dismissed cases, nor the indictments for the offenses to

which he admitted guilt under section 12.45 are included in the appellate record. The only

evidence of the dates of the losses for which the trial court ordered restitution were Walker’s

testimony and bank statements. Although Walker testified during the first hearing that the

purchases—including hotel rooms—necessitated by Lockett’s conduct ranged from

September 16, 2021, through December 10, 2021, we cannot compare that range of dates with

the dates alleged in any of the indictments because Lockett failed to ensure their inclusion in

the record, including during the proceeding on his motion for new trial. See Rideaux v. State,

498 S.W.3d 634, 639 (Tex. App.—Houston [14th Dist.] 2016, no pet.) (“An appellant may file a

motion for new trial or a formal bill of exception to develop facts necessary to present a

sufficient record on appeal.”).

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Although Lockett included purported copies of the indictments in an appendix

attached to his brief and recites various dates in arguing the issue, neither the appendix

nor Lockett’s brief is evidence that we may consider in this appeal. See Solomon v. State,

49 S.W.3d 356, 365 (Tex. Crim. App. 2001) (disallowing supplementation of appellate

record with document from another case); see also Estrada v. State, No. 14-17-00410-CR,

2018 WL 5914504, at *3 (Tex. App.—Houston [14th Dist.] Nov. 13, 2018, pet. ref’d) (mem. op.,

not designated for publication) (stating that court of appeals could not consider documents

attached as appendix to appellate brief because they “were filed in a different proceeding and are

not part of the record”); Williams v. State, No. 07–12–00285–CR, 2013 WL 4779728, at *1 (Tex.

App.—Amarillo Sept. 5, 2013, no pet.) (mem. op., not designated for publication) (explaining

that “appellant has not presented us with an appellate record sufficiently adequate to resolve the

dispute, and his attaching the missing document to his brief does not fill the void.”).

Moreover, while Lockett has not asked that we take judicial notice of the

indictments, we could not do so in these circumstances. See Fletcher v. State, 214 S.W.3d 5, 7

(Tex. Crim. App. 2007) (“[T]he general rule is that an appellate court cannot go to the record of

another case for the purpose of considering [evidence] found there but not shown in the record

case before it.”); Turner v. State, 733 S.W.2d 218, 223 (Tex. Crim. App. 1987) (cautioning that

appellate court “could not look to records in other cases to supply factual deficiency in the case

before it”); see also Urban v. State, 387 S.W.2d 396, 398 (Tex. Crim. App. 1965), overruled on

other grounds by Smith v. State, 450 S.W.2d 618, 622 (Tex. Crim. App. 1970) (“We doubt that it

would have been proper for a court to have judicially noticed a vitally contested bit of imperative

proof, such as the three essential dates in the indictment.”).

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Accordingly, as a result of Lockett’s failure to provide a sufficient appellate

record to show reversible error, there is no evidence in the record from which we can conclude

that the trial court ordered restitution for offenses that were dismissed under the plea agreement

or for dates falling outside those alleged in the indictments for the offenses to which Lockett

admitted guilt under section 12.45. See Williams, 662 S.W.3d at 464; London, 490 S.W.3d at

508. We therefore overrule his first issue.

III. Proximate Cause

In his second issue, Lockett contends that the trial court abused its discretion by

ordering restitution for losses that were not proximately caused by his criminal conduct. He

argues that Walker’s losses were “too remote from [his] criminal actions,” that the offenses to

which he admitted guilt under section 12.45—continuous family violence and repeated violation

of a protective order—do not “contemplate[] economic damage,” and that her “decision to go to

a hotel instead of calling the police [wa]s too attenuated from [his] conduct to have been

proximately caused by it.”

For a victim to be eligible for a restitution payment, the State must prove by a

preponderance of the evidence that the victim’s loss foreseeably resulted from an offense for

which the defendant was criminally responsible. Hanna, 426 S.W.3d at 95. “It is not enough to

show that the defendant caused the damage; the State must show that the offense . . . caused the

damage.” Johnson v. State, 680 S.W.3d 616, 619 (Tex. Crim. App. 2023). “This proximate

cause limitation focuses on whether the conduct and circumstances in the particular case created

a foreseeable risk.” Lawson v. State, 64 S.W.3d 396, 399 n.13 (Tex. Crim. App. 2001) (Cochran,

J., concurring). But see Cyr v. State, 665 S.W.3d 551, 560 (Tex. Crim. App. 2022) (explaining

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that “[f]oreseeability is an implicit requirement for causation that criminal law addresses through

culpability” and that “[w]hen the State proved the necessary mens rea, it likewise proved

‘proximate causation’ as that term is used in the civil counterpart to criminal causation”).

Continuous family violence involves “a series of at least two bodily-injury

assaults committed within a certain 12–months–or–less period against a single victim in a dating

relationship with” a defendant. Ellison v. State, 425 S.W.3d 637, 648 (Tex. App.—Houston

[14th Dist.] 2014, no pet.); see Tex. Penal Code §§ 22.01(a)(1), 25.11(a). A person commits the

offense of repeated violation of a protective order if, during a period that is twelve months or less

in duration, he two or more times violates an order listed in Penal Code subsection 25.07(a) by

committing family violence against, threatening or harassing, or going near a protected

individual; possessing a firearm; or tracking or monitoring a protected individual’s personal

property or vehicle without her consent. See Tex. Penal Code §§ 25.07(a), .072(a).

There was sufficient evidence from which the trial court could have reasonably

determined that the State had proven proximate cause by a preponderance of the evidence.

Lockett admitted to committing against Walker the offenses of continuous family violence and

repeated violation of a protective order. Walker testified that Lockett had “stalked her”; that she

was unable to go home for three months; that she had to stay in hotels during that time; and that

when she tried to go home, “he would chase [her,] and [she] had to go on high[-]speed chases

from him.” She had to stay at hotels because “Lockett was threatening to kill [her],” and she was

“afraid for [her] life” and afraid that he “was going to kill [her] or set [her] house on fire with

[her] in it.” All of her hotel fees “stemm[ed] from incidents caused by Mr. Lockett that made

[her] unable to go to [her] home.” The trial court did not abuse its discretion by finding that

Walker’s hotel expenses were a foreseeable result of Lockett repeatedly assaulting, chasing,

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going near, or threatening her. See Johnson, 680 S.W.3d at 619; Lawson, 64 S.W.3d at 399 n.13

(Cochran, J., concurring). And although Lockett argues that Walker’s failure to go to the police

rendered her hotel stays too attenuated, she in fact testified that “law enforcement [was]

involved” during the period of her “not being able to live in her house.”

Lockett asserts that we should be guided by our sister court’s decision in Lemos.

The facts of that case are, however, distinguishable. Lemos was convicted of aggravated robbery

in connection with a grocery-store robbery in which the store’s owner was killed. 27 S.W.3d at

44. The trial court sentenced Lemos to probation and ordered him to pay, as a condition of his

probation, restitution for the owner’s funeral expenses, ambulance and medical fees incurred by

his widow, therapeutic services for the widow and her daughter, lost income, and the loss of

perishable goods from the store. Id. at 44–49. Over $20,000 of goods, or “a substantial portion

of the store’s perishable inventory,” reportedly spoiled after the owner’s death because his

widow was “too distraught after her husband’s death to tend to the store.” Id. at 47.

Our sister court concluded that the trial court had abused its discretion by ordering

restitution for the perishable goods because the record did not establish that their loss resulted

from the robbery. Id. In reaching its conclusions, the court noted that the property damage did

not occur during the offense but only “during the days (and possibly weeks) following [the

owner’s] death.” Id.

Conversely, there is no evidence in the record that Walker’s hotel stays were not

contemporaneous with the offenses to which Lockett admitted guilt under section 12.45. To the

contrary, she testified that the stays were directly caused by his actions. While we cannot

definitively say—once more owing to the record’s deficiencies—that these actions formed the

basis for the offenses considered under section 12.45, we must view the evidence in the light

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most favorable to the trial court’s ruling. See State v. Lerma, 639 S.W.3d 63, 68 (Tex. Crim.

App. 2021) (“The abuse of discretion standard is a deferential standard of review that requires

appellate courts to view the evidence in the light most favorable to the trial court’s ruling.”

(internal quotation marks omitted)). Moreover, there is a much greater degree of

foreseeability—and firmer causal nexus—between repeated assaultive, threatening, and

harassing conduct toward a dating partner and the victim’s fleeing to a hotel than there is

between a robbery and the spoliation of perishable goods after a potentially substantial passage

of time. We overrule Lockett’s second issue.

CONCLUSION

Having overruled both of Lockett’s issues, we affirm the trial court’s

restitution order.

__________________________________________
Maggie Ellis, Justice

Before Justices Theofanis, Crump, and Ellis

Affirmed

Filed: August 21, 2025

Do Not Publish

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