Schulz, Tom Alvin v. State ( 2012 )

BATl; Opinion issued September 19, 2012.
In i’Iie
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No. O5-l200287-CR
No. 05.42-0028w-CR
TIIOi1AS ALVIN SCII ULZ, Appellaait
V.
THE STATE OF TEXAS, Appdilce
On Appeal from the Criminal District Court No. 3
Dallas Counts’, Texas
Trial Court Cause Nos. Fl0—00500—J, Fl l—00343—J
MEMORANDUM OPINION
Before Justices Morris, Francis, and Murphy
Opinion By Justice Murphy
Thomas Alvin Schulz waived a jury and pleaded guilty to credit card abuse and theft of
property from an elderly person valued at $500. See TEx. PENAL CODE ANN. § 3 1.03(a), (e)(3),
(f(3)(A), 32.31(b), (d) (West 2011 & Supp. 2012). Pursuant to plea agreements, the trial court
deferred adjudicating guilt, placed appellant on five years’ community supervision, and assessed a
$1,000 fine and $85,506.22 in restitution in each case. The trial court certified appellant’s right to
appeal the amount of restitution. See TEx. R. APP. P. 25.2(d).
In a single issue, appellant contends the trial court erred in ordering the amount of restitution
absent any evidence being presented. We sustain the issue, set aside the trial court’s orders regarding
restitution, and remand to the trial court for a new hearing on the appropriate amount of restitution.
The background of the case and the evidence admitted at trial are well known to the parties, and we
therefore limit recitation of the facts. We issue this memorandum opinion pursuant to Texas Rule
of Appellate Procedure 47.4.
Appellant argues there is no evidence to justif& the restitution awards and the proper remedy
is to delete the restitution orders entirely. The State concedes the lack of evidence to establish a
fhctual basis for the restitution ordered, but argues the appropriate remedy is to set aside the amount
of restitution ordered and remand to the trial court to determine a just amount.
We review challenges to restitution orders under an abuse ofdiscretion standard. Canwright
State, 605 S.W.2d 287, 288-89 (Tex. Crim. App. [Panel Op.] 1980). A trial court abuses its
discretion when it acts in an arbitrary or unreasonable mannet Montgomeiy v. State, 810 S.W.2d
372,380 (Fex. Crim. App. 1990).
The Texas Cede of Criminal Procedure authorizes the sentencing court to order payment of
restitution to the victim for losses sustained as a result ofthe convicted offense. TEx. CODE ClaM.
PROC. ANN. art. 42.037(a) (West Supp. 2011). Due process requires three restrictions on the
restitution a trial court mayorder (1) the amount must bejust and supported by a factual basis within
the record; (2) the restitution ordered must be only for the offense for which a defendant is criminally
responsible; and (3) the restitution ordered must be proper only for the victims of the offense for
which a defendant is charged. Canirell “. State, 75 S.W.3d 503,512 (Tex. App.—Texarkana 2002,
pet. refd).
As the State concedes, the record contains no evidence supporting the restitution orders for
$85,506.22. Accordingly, we conclude the trial court abused its discretion by ordering those
amounts and sustain appellant’s issue.
—1—
The established procedure, when the record evidence is insufficient to support the amount
of restitution ordered, is to abate the appeal, set aside the amount of restitution, and remand the case
tor a hearing to determine a just amount of restitution. Barton v State, 21 S.W.3d 287, 290 (Tex,
Crim, App. 2000); Qartwright, 605 S.W.2d at 289. Accordingly, we set aside the trial court’s
restitution orders and remand the cases to the trial court for a new determination of the proper
amount of restitution. The appeal will be abated to allow the trial court to comply with this Court’s
order,
A/i.
MARY MURPHY
JUSTICE
J
Do Not Publish
TEx, R. ArP. P. 47
I 20287F1J05
Order issued September 19, 2012.
In The
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No, 05-i200287-CR
No. 0542-00288-CR
THOMAS ALVIN SCHULZ, Appellant
‘7.
THE STATE OF TEXAS, Appellee
ORDER
Before Justices Morris, Francis, and Murphy
Based upon the Court’s opinion of this date, we set aside the trial court’s restitution
orders and remand the cases to the trial court for a hearing to determine the proper amount of
restitution.
We ORDER the trial court to transmit a record of the proceedings, including the new
written restitution orders, to this Court within THIRTY DAYS of the date of this order.
This appeal is ABATED to allow the trial court to comply with the above order. The
appeal shall be reinstated thirty days from the date of this order or when the record of the
restitution hearing is received, whichever is earlier.
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MARY MRPHY (J ()
JUSTICE