                                     NO. 12-12-00157-CR

                          IN THE COURT OF APPEALS

            TWELFTH COURT OF APPEALS DISTRICT

                                         TYLER, TEXAS

MARK ANTHONY WILLIAMS,                                  §             APPEAL FROM THE 7TH
APPELLANT

V.                                                      §             JUDICIAL DISTRICT COURT

THE STATE OF TEXAS,
APPELLEE                                                §             SMITH COUNTY, TEXAS

                                       MEMORANDUM OPINION
        Mark Anthony Williams appeals his conviction for possession of marijuana, for which he
was sentenced to imprisonment for twelve months and ordered to pay restitution in the amount of
one hundred forty dollars to the Texas Department of Public Safety. In one issue, Appellant
argues that the trial court erred in ordering restitution. We modify and affirm as modified.

                                                BACKGROUND
        Appellant was charged by indictment with possession of between four ounces and five
pounds of marijuana and pleaded “guilty.” The matter proceeded to a trial on punishment.
Following the argument of counsel, the trial court found Appellant “guilty” as charged and
sentenced him to imprisonment for twelve months. The trial court also ordered that Appellant
pay restitution in the amount of one hundred forty dollars to the Smith County Collections
Department.1 This appeal followed.


        1
          In his brief, Appellant states that the $140 in “restitution” was ordered paid to the Texas Department of
Public Safety (DPS). Based on our review of the record, DPS sought to recover the funds as a drug lab fee.
                                           RESTITUTION
       In part of his sole issue, Appellant contends that the trial court abused its discretion in
ordering payment of restitution when there was no evidence before the court to support the
imposition of restitution.
       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.) (op., not
designated for publication). 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).
       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)
(West Supp. 2012). 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) (West Supp. 2012).              The standard of proof for
determining restitution is a preponderance of the evidence. See TEX. CODE CRIM. PROC. ANN. art.
42.037(k) (West Supp. 2012). The burden of proving the amount of loss sustained by the 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) (West Supp. 2012). 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. A party is not
required to object to preserve evidentiary sufficiency of a restitution order. See Mayer v. State,

                                                  2
309 S.W.3d 552, 555 (Tex. Crim. App. 2010).
         Here, the State concedes that there is no evidence to support the amount ordered as
“restitution.” We agree. Based on our review of the record and the presentence investigation
report (PSI), 2 we conclude that there is no evidence to support the amount ordered paid as
“restitution” by the trial court. Further, there is no indication from the record that the State was
precluded from presenting evidence and being heard on the issue the amount of fees charged by the
DPS drug lab. See Mayer v. State, 309 S.W.3d at 557. Accordingly, we hold that because the
trial court’s “restitution” order lacks evidentiary support, it is improper and should be deleted.
See id. Appellant’s sole issue is sustained in part.3


                                                     DISPOSITION
         We have sustained Appellant’s sole issue in part. Having done so, we modify the trial
court’s judgment by deleting the order that Appellant pay restitution to the DPS in the amount of
one hundred forty dollars and affirm the trial court’s judgment as modified.

                                                                  JAMES T. WORTHEN
                                                                    Chief Justice
Opinion delivered December 12, 2012.
Panel consisted of Worthen, C.J., Griffith, J, and Hoyle, J.


                                               (DO NOT PUBLISH)




         2
            Appellate courts may consider evidence included in the PSI if the trial court takes judicial notice of it, as it
did in the instant case. McGill v. State, No. 06-10-00184-CR, 2011 WL 3689357, at *1 (Tex. App.–Texarkana Aug.
24, 2011, no pet.) (mem. op., not designated for publication). The PSI contains a document entitled “Restitution” that
requests reimbursement for costs incurred in the analysis of controlled substances seized in connection with the instant
offense in the amount of $140. This unsigned document makes reference to an affidavit from the Texas DPS Crime
Laboratory. However, based on our review, the PSI contains no affidavit setting forth the costs incurred by DPS.
The PSI also contains a “Drug Analysis Laboratory Report” on DPS letterhead signed by Chance Cline, Forensic
Scientist, Texas DPS Tyler Laboratory. However, this report makes no reference to the cost incurred by the DPS lab.
Finally, the PSI contains an unsigned “Petition for Restitution Under Article 42.12, Sec. 11(a)(19), Code of Criminal
Procedure.” This petition makes allegations of an analysis fee of $140, but these allegations are not evidence.
         3
           Having sustained this portion of Appellant’s sole issue, we need not consider the remainder of Appellant’s
sole issue pertaining to the trial court’s authority to order the reimbursement of a drug lab fee. See TEX. R. APP. P.
47.1.
                                                             3
                                  COURT OF APPEALS
      TWELFTH COURT OF APPEALS DISTRICT OF TEXAS
                                           JUDGMENT

                                        DECEMBER 12, 2012


                                         NO. 12-12-00157-CR


                                 MARK ANTHONY WILLIAMS,
                                         Appellant
                                            V.
                                   THE STATE OF TEXAS,
                                         Appellee


                              Appeal from the 7th Judicial District Court
                         of Smith County, Texas. (Tr.Ct.No. 007-1172-11)


                      THIS CAUSE came to be heard on the appellate record and briefs filed
herein, and the same being considered, it is the opinion of this court that the judgment of the trial
court below should be modified and as modified, affirmed.
                      It is therefore ORDERED, ADJUDGED and DECREED that the judgment
of the court below be modified by deleting the order that Appellant pay restitution to the DPS in
the amount of one hundred forty dollars, and as modified, the trial court’s judgment is affirmed.
                      It is further ORDERED that this decision be certified to the trial court below
for observance.
                      James T. Worthen, Chief Justice.
                       Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.
