Gilbert Aguirre v. State ( 2008 )

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MEMORANDUM OPINION
No. 04-07-00889-CR
Gilbert AGUIRRE,
Appellant
v.
The STATE of Texas,
Appellee
From the 218th Judicial District Court, Karnes County, Texas
Trial Court No. 05-11-00128-CRK
Honorable Donna S. Rayes, Judge Presiding
PER CURIAM
Sitting: Karen Angelini, Justice
Sandee Bryan Marion, Justice
Rebecca Simmons, Justice
Delivered and Filed: November 5, 2008
ABATED AND REMANDED
Gilbert Aguirre was convicted of aggravated assault. Among the issues Aguirre presents on
appeal is the absence of a factual basis in the record to support the amount of restitution he is ordered
to pay. The State concedes that no evidence to support the amount of restitution is contained in the
record but was “arrived at a later date from submissions by the victim in regards to his medical
costs.”
04-07-00889-CR
Due process considerations require that the record must contain evidence to show that the
amount of restitution set by a trial court has a factual basis. Cartwright v. State, 605 S.W.2d 287,
289 (Tex. Crim. App. 1980). The proper procedure where the amount of restitution is not supported
by the record is to abate the appeal, set aside the amount of restitution, and remand the cause for a
hearing to determine a just amount of restitution. Beedy v. State, 250 S.W.3d 107, 113 (Tex. Crim.
App. 2008); Barton v. State, 21 S.W.3d 287, 290 (Tex. Crim. App. 2000). Accordingly, the amount
of restitution contained in the trial court’s judgment is set aside, this appeal is abated, and the cause
is remanded to the trial court for a hearing to determine a just amount of restitution.
PER CURIAM
DO NOT PUBLISH
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