Opinion
Nos. 05-04-00554-CR, 05-04-00555-CR
Opinion issued May 11, 2006. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 203rd Judicial District Court, Dallas County, Texas, Trial Court Cause Nos. F03-26947-Sp and F03-40790-HP.
Abated and Remanded.
Before Justices WRIGHT, BRIDGES, and FITZGERALD.
OPINION
Kirk Durand Thursby appeals the trial court's judgments entered on his open pleas of guilty to two burglary offenses. The trial court assessed Thursby's punishment at twenty years of confinement and a $2,500 fine for each offense. Also, the trial court ordered restitution in the amount of $19,000 for each offense.
Thursby raises six issues on appeal that generally argue two points: (1) the evidence is legally and factually insufficient to support the trial court's restitution orders; and (2) his guilty pleas were not freely and voluntarily made.
We conclude there was insufficient evidence to support the amount of restitution ordered by the trial court. The appeals are abated, the restitution orders are set aside, and the cases are remanded to the trial court for a hearing to determine the proper amount of restitution.
I. BACKGROUND
Thursby was indicted for two offenses of burglary of a habitation. The first indictment, in cause no. 05-04-00554-CR, alleges Thursby committed burglary of the habitation of Bruce Sheidt. The second indictment, in cause no. 05-04-00555-CR, alleges Thursby committed burglary of the habitation of Enrique Tarango. Thursby entered open pleas of guilty to both burglary offenses and pleaded true to the enhancement paragraphs in each indictment.
During the hearing before the trial court, Tarango testified he lost $20,000 worth of personal belongings, including televisions, jewelry, appliances, a DVD player, a game console, compact discs, clothing, and food. Tarango stated he recovered from pawn shops a microwave, a bracelet, and two video games, but he did not testify as to their value. Sheidt did not testify at the hearing. The trial court orally pronounced Thursby's punishment at twenty years of confinement and a $2,500 fine for each offense, and ordered an unspecified amount of restitution for each victim. In the written judgment, the trial court ordered restitution in the amount of $19,000 for each offense, but did not specify the names and addresses of the persons to receive the restitution.
Thursby's original appellate counsel filed a brief that concluded his appeals were wholly frivolous and without merit. See Anders v. California, 386 U.S. 738 (1967). However, the Court concluded there was at least one arguable issue for appeal regarding the factual sufficiency of the evidence supporting the trial court's order of restitution. See Thursby v. State, No. 05-04-00554-CR, 2005 WL 1594372 (Tex.App.-Dallas July 6, 2005) (not designated for publication). New appellate counsel was appointed by the trial court and new briefing was filed raising six issues.
II. SUFFICIENCY OF THE EVIDENCE TO SUPPORT RESTITUTION
In issues one through four, Thursby argues the evidence is legally and factually insufficient to support the trial court's orders of restitution. The State concedes the evidence is insufficient to support the restitution order in cause no. 05-04-00554-CR, but responds that it is sufficient to support the restitution order in cause no. 05-04-00555-CR.
A. Standard of Review
An appellate court reviews restitution orders under an abuse of discretion standard. Cartwright v. State, 605 S.W.2d 287, 289 (Tex.Crim.App. [Panel Op.] 1980). An abuse of discretion by the trial court in setting the amount of restitution will implicate due-process considerations. Campbell v. State, 5 S.W.3d 693, 696 (Tex.Crim.App. 1999). When there is insufficient evidence to support the amount of restitution ordered by the trial court, the proper procedure is to abate the appeal, set aside the amount of restitution, and remand the case for a hearing to determine a just amount of restitution. See Barton v. State, 21 S.W.3d 287, 290 (Tex.Crim.App. 2000); Cartwright, 605 S.W.2d at 289.
B. Applicable Law
In addition to any fine authorized by law, a sentencing court may order the defendant to make restitution to any victim of the offense. See Tex. Code Crim. Proc. Ann. art. 42.037(a) (Vernon Supp. 2005). The standard of proof for determining restitution is a preponderance of the evidence. Tex. Code Crim. Proc. Ann. § 42.037(k). Any dispute relating to the proper amount or type of restitution shall be resolved by the trial court. See id. However, there are three limits to the amount of restitution a trial court can order: (1) the amount must be just and supported by a factual basis within the loss of the victim; (2) the restitution ordered must be for the offense for which the defendant is criminally responsible; and (3) the restitution must be for the victim of the offense for which the defendant is charged. See Campbell, 5 S.W.3d at 696-97; Martin v. State, 874 S.W.2d 674, 677-78 (Tex.Crim.App. 1994).
While the sentencing court is authorized to order restitution, due process requires a factual basis in the record for the amount of restitution ordered. Martin, 874 S.W.2d at 676. In other words, there must be sufficient evidence in the record to support the order. Cartwright, 605 S.W.2d at 289. The testimony of a victim of the crime, who has personal knowledge of the amount of loss, is adequate to support a restitution order. See Maloy v. State, 990 S.W.2d 442, 444-45 (Tex.App.-Waco 1999, no pet.); Urias v. State, 987 S.W.2d 613, 614-15 (Tex.App.-Austin 1999, no pet.).
C. Application of the Law to the Facts in Cause No. 05-04-00555-CR
In issues one and two, Thursby argues the evidence is legally and factually insufficient to support the trial court's order of restitution in cause no. 05-04-00555-CR. He contends there was insufficient evidence of the value of Tarango's stolen property because there was no evidence of the number of items stolen, the monetary value of each item, or the value of the items recovered. The State responds that Turango's testimony that the stolen property was worth $20,000 was sufficient evidence and the trial court resolved any issues in the valuation when it ordered restitution in the amount of $19,000.
Tarango testified his total loss was around $20,000. He later testified he was able to recover some of the stolen items. However, there was no evidence of the value of the stolen items that were recovered or the amount by which Tarango's total loss should have been offset. We conclude there was insufficient evidence in the record to support the amount of restitution ordered by the trial court in cause no. 05-04-00555-CR.
Thursby's first and second issues are sustained.
D. Application of the Law to the Facts to Cause No. 05-04-00554-CR
In issues three and four, Thursby argues the trial court abused its discretion because the evidence is legally and factually insufficient to support the trial court's order of restitution in cause no. 05-04-00554-CR. He contends there was no evidence of the amount of restitution because Sheidt did not testify and no other evidence of the value of the items stolen was offered. The State, with appreciated candor, concedes there was no evidence to support the restitution order and requests the Court to abate the appeal and remand it to the trial court for a hearing to determine the just amount of restitution.
There was no evidence of the amount of loss sustained by Sheidt. Sheidt did not testify and no other evidence was admitted that showed the items stolen or their value. We conclude there was insufficient evidence in the record to support the amount of restitution ordered by the trial court in cause no. 05-04-00554-CR.
Thursby's third and fourth issues are sustained.
III. CONCLUSION
The trial court's orders of restitution are set aside and the cases are remanded to the trial court for a hearing to determine the proper amount of restitution. The appeals are abated to allow the trial court to determine the appropriate amount of restitution.