NO. 12-09-00105-CR

 

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

GLEN R. CARTER, ' APPEAL FROM THE 7TH

APPELLANT

V. ' JUDICIAL DISTRICT COURT OF

THE STATE OF TEXAS,

APPELLEE ' SMITH COUNTY, TEXAS

 

MEMORANDUM OPINION

Glen R. Carter appeals his conviction for possession of less than one gram of cocaine, for 

which he was sentenced to imprisonment for thirteen years. In two issues, Appellant contends 

that the trial court erroneously ordered that he pay $140 in restitution for a “drug lab fee.” We 

modify and, as modified, affirm.

BACKGROUND

Appellant was charged by indictment with possession of less than one gram of cocaine. 

Appellant pleaded “guilty.” Appellant further pleaded “true” to two enhancement allegations in 

the indictment. Thereafter, the trial court sentenced Appellant to imprisonment for thirteen years. 

The trial court further ordered Appellant to pay restitution of $140 to the Smith County Collections 

Department as a “drug lab fee.” This appeal followed.

On December 27, 2010, this court entered a per curiam order, in which it held that the trial 

court abused its discretion in ordering that Appellant pay $140 dollars in restitution because the 

amount ordered does not have a factual basis in the record. Accordingly, we abated the appeal, 

set aside the amount of restitution, and remanded the cause to the trial court for a new restitution 

hearing. 
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On January 11, 2011, the trial court conducted a hearing as ordered. At the hearing, the 

State announced that it was abandoning its claim for the $140 “drug lab fee restitution.” 

Appellant responded that he did not oppose the State’s abandonment of its claim for restitution. 

In further compliance with this court’s per curiam order, the trial court provided this court with 

findings of fact and conclusions of law regarding the restitution hearing as well as a transcript of 

the hearing. 

RESTITUTION

In his first issue, Appellant challenges the trial court’s order that he pay restitution as a 

“drug lab fee.” In his second issue, Appellant contends that the trial court erred in ordering 

restitution because there was no evidence before the court in support of the amount of restitution 

ordered. 

An appellate court reviews challenges to restitution orders under an abuse of discretion 

standard. Cartwright v. State, 605 S.W.2d 287, 289 (Tex. Crim. App. [Panel Op.] 1980); see

Drilling v. State, 134 S.W.3d 468, 469 (Tex. Crim. App. 2004); Riggs v. State, No. 

05-05-01689-CR, 2007 WL 969586, at *3 (Tex. App.–Dallas Apr. 3, 2007, no pet.). 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); see also Drilling, 134 S.W.3d at 471.

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. 2010). If the offense results in personal injury to the victim, the court may order 

the defendant to make restitution to the victim for any expenses incurred by the victim as a result of 

the offense or to the compensation fund for payments made to or on behalf of the victim. See 

TEX. CODE CRIM. PROC. ANN. art. 42.037(b)(2) (Vernon Supp. 2010). The standard of proof for 

determining restitution is a preponderance of the evidence. See TEX. CODE CRIM. PROC. ANN. art. 

42.037(k) (Vernon Supp. 2010). The burden of proving the amount of loss sustained by the 
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victim is on the prosecuting attorney. Id. The trial court may not order restitution for a loss if the 

victim has or will receive compensation from another source. See TEX. CODE CRIM. PROC. ANN.

art. 42.037(f)(1) (Vernon Supp. 2010). Due process places three limitations on the restitution a 

trial court can order: (1) the amount must be just and supported by a factual basis within the 

record; (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 or victims of the offense for which the 

defendant is charged. See Drilling, 134 S.W.3d at 470; Campbell, 5 S.W.3d at 696–97; Martin v. 

State, 874 S.W.2d 674, 677–78 (Tex. Crim. App. 1994). Further, there must be sufficient 

evidence in the record to support the trial court's order. See Cartwright, 605 S.W.2d at 289.

At the January 11, 2011 restitution hearing, the State abandoned its claim for the $140 

“drug lab fee restitution.” Accordingly, because there is no evidence in the record to support the 

amount of restitution and the State has abandoned its claim for restitution, we hold that the trial 

court’s order that Appellant pay restitution of one hundred forty dollars to the Smith County 

Collections Department was erroneous and should be modified. Appellant’s second issue is 

sustained.1

CONCLUSION

We have sustained Appellant’s second issue. We therefore modify the trial court’s 

judgment to delete the order that Appellant pay restitution in the amount of $140. We affirm the 

trial court’s judgment as modified.

BRIAN HOYLE

 Justice

Opinion delivered January 31, 2011.

Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.

(DO NOT PUBLISH)

 

1 Having sustained Appellant’s second issue, we do not reach Appellant’s first issue.