### In The Court of Appeals Sixth Appellate District of Texas at Texarkana

______________________________ No. 06

- 11

- 00 0 0 6

- CR

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CHARLES FLOWERS, JR. , Appellant

V. THE STATE OF TEXAS, Appellee

On Appeal from the 188th Judicial District Court

Gregg County, Texas Trial Court No. 38842

- A

Before Morriss, C.J., Carter and Moseley, JJ. Memorandum Opinion by Justice Carter2 MEMORANDUM OPINION
I. Facts and Procedural Background
Charles Flowers , Jr. , was indicted for burglary of a habitation owned by Deardra Woods. On August 10, 2010, Flowers entered a plea of guilty after reaching a negotiated plea agreement
with the S tate and was placed on community supervision for ten years. The plea agreement,

w hich contained the punishment recommendations, was signed by Flowers and his attorney and noted that the other punishment recommendations were on the ―conditions of probation sheet.‖
The ― O rder E stablishing C onditions of P robation ‖ (separate from the judgment) also was signed by Flowers; it required him to pay restitution of $2 , 425 .00 at the rate of $25.00 per month. The judgment of conviction likewise reflected a restitution due of $2 , 425 .00 . No objection was made

to community su pervision conditions, including the restitution order. Three months later, on November 1, 2010, the State moved to revoke Flowers’ supervision, alleging that he failed to perform community service and that he had burglarized a home and building while und er supervision. Flowers pled ―not true‖ to the allegations, and after a hearing, the trial court found that Flowers failed to perform the required community service hours

. 1 Pursuant to its finding, the trial court revoked community supervision and senten ced Flowers to ten years’ incarceration. The judgment of revocation also requires Flowers to pay $2,375 .00
restitution to Woods.

1 The trial court made no finding regarding the State’s allegations that Flowers committed another burglary.3

The only argument on appeal is that the restitution order should be stricken from the judgment because there is no evidence e stablishing the amount to be paid. We affirm the judgment of the trial court.
II. Standard of Review We review challenges to restitution orders under an abuse of discretion standard. Cantrell
v. State , 75 S.W.3d 503, 512 (Tex. App.

— Texarkana 2002, pet. ref’d) ( citing Cartwright v. 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 manner. Id . ( citing Montgomery v. State , 810 S.W.2d 372, 380 (Tex. Crim. App . 1990)).
III. Preservation of Error We must first determine if it is necessary for Flowers to preserve the question of whether the evidence provides a factual basis for the restitution order. 2
The Texas Court of Criminal Appeals in Idowu v. State h eld that to preserve error, the defendant must complain at the trial level about the appropriateness of (as opposed to the factual basis for) a trial court’s restitution order. 73 S.W.3d 918, 921 (Tex. Crim. App. 2002)

. As we understand it, Flowers’ comp laint concerns the factual basis for the restitution order, not the appropriateness of the order. This constitutes a sufficiency of evidence issue which may be reviewed even though it is first raised on appeal. Id. at 922

.

2 Flowers does not challenge the trial court’s revocation of his community supervision or the amount of $2,425.00 in restitution adjudicated at the time of his negotiated plea agreement.4

IV. Sufficiency of Evidence Due process requires that evidence in the record must exist to show that the amount of
restitution has a factual basis. Campbell v. State , 5 S.W.3d 693, 696, 699 (Tex. Crim. App. 1999) ( citing Cartwright , 605 S.W.2d at 289). The restitution awarded must be just and have a factual
basis within the loss of the victim. Id. In this instance, the total amount of restitution was established at the time Flowers entered a negotiated plea of guilty. Flowers and his attorney signed all the documents at the time of the entry of the plea acknowledging restitution in the amount of $2 , 425 .00 . There was no dispute about the amount of restitution, but it was presented to the trial court as a part of the overall
neg otiated plea agreement , to which both the S tate and Flowers ―mutually agreed and recommended‖ to the judge. If any dispute had existed on this issue, it could have been presented
to the trial court to resolve. T EX

. C ODE C RIM

. P ROC

. A NN

. art. 42.037(k) (W est Supp. 2010)

. The original restitution order of $2 , 425 .00 is supported by the specific agreement of the parties as to the appropriateness and accuracy (or factual basis) for the restitution order. Flowers was placed on community supervision on Aug ust 20, 2010; during his short supervision period, Flowers reported to the supervision officer two times (September 21 and October 19). The State moved to revoke Flowers’ supervision based upon allegations that he failed to perform community service and that he had burglarized a home and/or a building. Notably, the State did not allege that Flowers failed to pay restitution. From the absence of such5

an allegation, it is logical to infer that just as Flowers fulfilled the requirement to report to the
communi ty supervision office, he also satisfied the restitution condition of his community supervision by paying the $25 .00 monthly restitution payments for September and October, leaving $2,375 .00 as the balance. Since the S tate moved to revoke Flowers’ supervi sion on November 1, 2010, he was arrested the next day, remained incarcerated until the hearing in January 2011, and was then se ntenced to a ten

- year term, without bond. I t can reasonably be inferred that he made no restitution payment for November or the reafter. Based upon these facts, we find that there was evidence to support the award of $2,375 .00 in restitution. Accordingly, we overrule this point of error and affirm the trial court’s judgment.

Jack Carter Justice
Date Submitted: September 6, 2011 Date Decided: September 7, 2011
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