Affirmed; Opinion Filed June 29, 2016.

In The

Court of Appeals

Fifth District of Texas at Dallas

No. 05-14-00697-CR

ALLEN MAURICE LITTLE, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the Criminal District Court No. 7

Dallas County, Texas

Trial Court Cause No. F-0951721-Y

MEMORANDUM OPINION

Before Justices Bridges, Francis, and Lang 

Opinion by Justice Lang

This is an appeal from the trial court’s order that the defendant pay $53,173.95 in 

restitution to the victim, Edward Arnold II, pursuant to TEX. CODE CRIM. PROC. ANN. art. 

42.037(a). In one issue, appellant asserts the evidence presented at the restitution hearing is 

insufficient to support restitution in this amount. We affirm the judgment of the trial court.

I. FACTUAL AND PROCEDURAL CONTEXT

In another opinion, we affirmed Heider’s conviction for aggravated assault.1 However,

we decided in favor of Little on his position that the $274,155.07 in restitution awarded by the 

trial court was error. Accordingly, we set aside the amount of restitution, remanded the case to 

the trial court for a hearing to determine a just amount of restitution, and abated the appeal. 

 

1

Little v. State, No. 05-14-00697-CR, 2015 WL 5022283 (Tex. App.–Dallas August 25, 2015, no pet.).
–2–

Upon remand, at the restitution hearing, the State offered evidence regarding the medical 

expenses incurred by the victim of the aggravated assault. The State offered two exhibits. Trial 

exhibit 16 is an invoice from Texas Vascular Associates, which showed an outstanding balance 

of $5,160 for medical treatment provided to Arnold. Trial exhibit 17 showed that the Crime 

Victims Compensation Fund has paid $38,569.95 directly to medical services providers for 

Arnold’s medical treatment. 

Also, the State called as witnesses Arnold and his father, who testified regarding 

Arnold’s medical procedures and expenses. Arnold described six surgeries in which physicians 

replaced portions of his skull. Then, Arnold described two surgeries in which physicians 

implanted “cochlear implants.” Additionally, Arnold testified that he underwent two surgeries in 

which a reconstructive surgeon “tried to get [his] head to look rounder.” Arnold’s father testified 

that Arnold has another surgery scheduled for six months’ from the date of the restitution hearing 

to “put another cap in [Arnold’s] head.”

As to his medication, Arnold generally described several including one for sleep, two for 

seizures, and one for migraines. According to Arnold, he pays for all of these medications out-ofpocket because Medicare, his only health insurance provider, will not pay. Arnold recalled that 

his most recent bill for medication was $120, while, on occasion, his monthly bill for 

prescriptions has been as low as $40.

Arnold testified that since 2008 Medicare has been paying all but a “co-pay” of $20 he 

paid for each doctor visit. Arnold stated he has “probably” been to the emergency room more 

than five times for treatment for seizures “this year.” According to Arnold’s father, Arnold has 

had “at least four” seizures “in the last two years,” each of which has required a visit to a 

hospital. 
–3–

Arnold and his father testified to numerous occasions on which Arnold has been required 

to visit “specialized” doctors. Specifically, Arnold stated he saw an infectious disease doctor 

once every few days in July of 2015 and then again “after October,” and that he saw his family 

doctor twice a week from October 2015 until the week of the restitution hearing for blood tests.

Also, Arnold testified that he went to physical therapy Monday through Friday for “two to three 

months” following his release from the hospital in February 2009.

Arnold’s father said he drove Arnold to see a neurologist “at least 10, 15 times” over the 

“course of two years.” Additionally, he said he took Arnold to see Dr. Taylor twice and Dr. 

Hobar four times following the offense, and that his wife brought Arnold to see Dr. Peters2at 

least four times following the offense. Arnold’s father said he took Arnold to a gastroenterologist

on one occasion “because his liver function went bad.” Also, he said that Arnold “saw his 

therapist” for depression three times since leaving the hospital in October 2015, paying a $25 

copay each time. Before the seizure in October, Arnold saw his “therapist” for depression “about 

once every month” after his hospitalization in February 2009. Sometimes Arnold saw the 

“therapist” more frequently, according to his father. 

Finally, the following exchange transpired during the defense closing argument:

Defense counsel: What we heard from Mr. Arnold the complaining 

witness said something about how Medicare pays 20 percent–or pays 80 percent 

and he pays 20 percent. That was not my understanding of how Medicare works. 

My understanding also is what the other Mr. Arnold, the father, testified to was 

there’s $20.00 general copay. And we heard a number of copays, but it’s not clear 

what those $20.00 copays equal out to.

The Court: Well, it’s clear to me, because I was totaling it while the 

witnesses were testifying. I was paying pretty close attention. I took pretty 

specific notes.

 

2

The record does not reflect what treatments Dr. Taylor, Dr. Hobar or Dr. Peters provided to Arnold.
–4–

Later, after the State argued for $48,141.95 as a just amount of restitution, the court 

stated “Well, my amount was a little higher than both of your amounts. So, based on the 

evidence that I received in this hearing, I am going to set restitution at $52,173.95.” The trial 

court rendered judgment awarding restitution in that amount. Little timely appealed.

II. STANDARD OF REVIEW AND APPLICABLE LAW

The Texas Code of Criminal Procedure authorizes the sentencing court to order payment 

of restitution to the victim for losses sustained as a result of the convicted offense. Maloy v. 

State, 990 S.W.2d 442, 444 (Tex. App.–Waco 1999, no pet.) (citing TEX. CODE CRIM. PROC.

ANN. art. 42.037(a) (West 2015). Article 42.037 states, in pertinent part, that “[i]f the offense 

results in personal injury to a victim, the court may order the defendant to make restitution to:

(A) the victim for any expenses incurred by the victim as a result of the offense[.]” TEX. CODE 

CRIM. PROC. ANN. art. 42.037(a)(2) (West 2015). 

Whether to order restitution as a condition of probation is “within the sound discretion of 

the trial court.” Cartwright v. State, 605 S.W.2d 287, 288–89 (Tex. Crim. App. 1980). However, 

“the dollar amount is a matter that the court ‘shall determine.’” Id. The burden is on the 

“prosecuting attorney” to demonstrate the proper amount of restitution by a preponderance of the 

evidence. TEX. CODE CRIM. PROC. ANN. art. 42.037(k). In determining the amount of restitution, 

the trial court “shall consider: (1) the amount of the loss sustained by any victim and the amount 

paid to or on behalf of the victim by the compensation to victims of crime fund as a result of the 

offense; and (2) other factors the court deems appropriate.” Id. art. 42.037(c). 

Due process considerations require that there must be evidence in the record to show that 

the amount set by the trial court has a “factual basis within the loss of the victim.” See Campbell 

v. State, 5 S.W.3d 693, 696 (Tex. Crim. App. 1999) (citing Cartwright, 605 S.W.2d at 289). 

Such evidence can include testimony by the victim as to medical expenses he incurred as a result 
–5–

of the offense. See, e.g., Maloy, 990 S.W.2d at 444 (other citations omitted). Testimony of the 

victim of the crime, “who has personal knowledge of the amount of loss, is adequate to support a 

restitution order.” Thursby v. State, 2006 WL 1389774, at *2 (Tex. App.–Dallas May 11, 2006, 

no pet.). 

III. APPLICATION OF LAW TO THE FACTS

Little contends the restitution amount of $52,173.95 as found by the trial court is not just 

because the State did not show by a preponderance of the evidence that the amount of restitution 

ordered has a “factual basis within the loss of the victim.” Campbell, 5 S.W.3d at 696. We 

disagree.

Documentary evidence shows $5,160 is owed to Texas Vascular Associates, and the 

Crime Victims Compensation Fund has paid $38,569.95 on Arnold’s behalf, for a total of 

$43,729.95. The trial court’s award of $52,173.95 is $8,444 more than the documentary evidence 

shows.

Arnold testified that he was treated at the emergency room for seizures at least five times 

since February 2009, paying a co-pay of $20 each time for a total of $100. Additionally, Arnold

testified that he saw an infectious disease doctor “every few days” in July, paying a co-pay of 

$20 each time. If Arnold visited the infectious disease doctor only once a week for four weeks, 

he would have visited that doctor four times in July, paying a total of $80 in co-pays. Arnold 

testified he visited his “family doctor,” who conducted blood labs, twice a week for the six 

weeks preceding the restitution hearing, paying a $20 co-pay each time. Arnold paid at least

$240 for those visits. Arnold testified that he was treated by a physical therapist “Monday 

through Friday” for “two to three months” following his release from the hospital in February 

2009, paying a $20 co-pay each time. Based on visits to that therapist for two months, five times 

per week for eight weeks, Arnold paid $800 in co-pays. Finally, Arnold testified that his 
–6–

prescription medication has cost between $40 and $120 per month since his release from the 

hospital in February 2009. Assuming Arnold paid only $40 each time for each of the 80 months 

since February 2009, Arnold paid as much as $3,200 for medication.

According to Arnold’s father, starting in October 2015, Arnold visited an “infectious 

disease doctor” “every day” for a “few months,” paying a $20 co-pay each time. Assuming 

Arnold visited the infectious disease doctor five days a week for a minimum of two months or 

eight weeks, he would have visited that doctor 40 times, costing him $800. Arnold’s father 

testified he took Arnold to visit a neurologist ten to fifteen times, and that Arnold paid a co-pay 

of $20 each time. Assuming Arnold visited a neurologist ten times, this cost him $200. Also, 

Arnold’s father testified that Arnold saw Dr. Taylor twice, Dr. Hobart four times, Dr. Peters four 

times, and a gastroenterologist one time, paying a $20 co-pay for each of the eleven visits. These 

visits cost Arnold $220. Arnold’s father testified Arnold visited a “therapist” three times between 

October 2015 and the date of the restitution hearing, paying a $25 co-pay each time, for a cost to

Arnold of $75. Further, according to Arnold’s father, prior to October 2015 and after his release 

from the hospital in February 2009, a period of eighty months, Arnold visited his “therapist” 

once a month, paying a $25 co-pay each time for a total of $2,000. The above-described numbers 

of visits to physicians, co-pay amounts, and medical expenses are based on a minimum 

calculation of expenses. However, the record shows the testimony gave a range of the number of 

visits, amounts, and expenses far above the minimum we identified. The calculation by the trial 

court falls within a conservative evaluation of the range supported by the testimony.

Accordingly, we conclude in the aggregate, the number of visits, co-pay charges, and 

medication expenses testified to by Arnold and his father since his release from the hospital in 

February 2009, in addition to the documentary evidence, totaling $48,141.95, demonstrates that 

the trial court’s award has a “factual basis within the loss of the victim.” See Campbell, 5 S.W.3d
–7–

at 696 (citing Cartwright, 605 S.W.2d at 289). We recognize the trial court is the exclusive judge 

of the credibility of the witnesses and the weight to be given their testimony. Burks v. State, 876 

S.W.2d 877, 909 (Tex. Crim. App. 1994). Therefore, we cannot conclude that the amount of 

restitution the trial court awarded is unsupported by the record. We decide this issue against 

Little.

IV. CONCLUSION

We affirm the judgment of the trial court.

Do Not Publish

TEX. R. APP. P. 47.2(A)

140697F.U05

/Douglas S. Lang/

DOUGLAS S. LANG

JUSTICE
–8–

Court of Appeals

Fifth District of Texas at Dallas

JUDGMENT

ALLEN MAURICE LITTLE, Appellant

No. 05-14-00697-CR V.

THE STATE OF TEXAS, Appellee

On Appeal from the Criminal District Court 

No. 7, Dallas County, Texas

Trial Court Cause No. F-0951721-Y.

Opinion delivered by Justice Lang. Justices 

Bridges and Francis participating.

Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.

Judgment entered this 29th day of June, 2016.