                                        NO. 12-13-00178-CR

                              IN THE COURT OF APPEALS

                 TWELFTH COURT OF APPEALS DISTRICT

                                           TYLER, TEXAS

MAURICE V. CAIN,                                         §       APPEAL FROM THE 241ST
APPELLANT

V.                                                       §       JUDICIAL DISTRICT COURT

THE STATE OF TEXAS,
APPELLEE                                                 §       SMITH COUNTY, TEXAS

                                        MEMORANDUM OPINION
       Maurice V. Cain appeals his conviction for tampering with physical evidence. He raises
three issues on appeal relating to the trial court’s order of reimbursement. We modify and affirm
as modified.


                                                 BACKGROUND

       A Smith County grand jury returned an indictment against Appellant for the offense of
tampering with physical evidence. Appellant pleaded “not guilty,” and a jury trial was held.
After the jury found him guilty, Appellant pleaded “true” to the State’s notice of enhancement,
and the jury assessed punishment at twenty years of imprisonment and a $10,000.00 fine. The
trial court sentenced Appellant in accordance with the jury’s verdict, ordered payment of court
costs, and ordered payment of restitution “if any is determined to be due.” The judgment of
conviction orders that $140.00 in restitution be payable to the “DPS LAB.”1 This appeal
followed.




       1
           “DPS” is the acronym used to identify the Texas Department of Public Safety.
                                   ORDER OF REIMBURSEMENT
       Appellant raises three separate issues challenging the trial court’s order of
reimbursement. In his second issue, Appellant argues that the trial court “erred in entering the
order of reimbursement because there was no evidence before the court regarding any amount
incurred by the DPS.”
Standard of Review and Applicable Law
       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
also Campbell v. State, 5 S.W.3d 694, 696 (Tex. Crim. App. 1999) (en banc); Williams v. State,
No. 12-12-00157-CR, 2012 WL 6214315, at *1 (Tex. App.—Tyler Dec. 12, 2012, no pet.)
(mem. op., not designated for publication). Due process is implicated when the trial court abuses
its discretion in setting the amount of restitution. See id. (citing Campbell, 5 S.W.3d at 696).
       There must be sufficient evidence in the record to support the trial court’s order, and a
defendant is not required to object to preserve an evidentiary sufficiency challenge concerning a
restitution order. See Mayer v. State, 309 S.W.3d 552, 555 (Tex. Crim. App. 2010); Cartwright,
605 S.W.2d at 289.
       Here, the State concedes there is no evidence to support the amount ordered as
“restitution” in the judgment. We agree. Based on our review of the record, 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 of the amount of fees charged by the DPS drug lab. See
Mayer, 309 S.W.3d at 557. Accordingly, we hold that the trial court’s “restitution” order lacks
evidentiary support, is improper, and should be deleted. See id.; Williams, 2012 WL 6214315, at
*2. Appellant’s second issue is sustained. Because we have sustained Appellant’s second issue,
we need not address his first and third issues. See TEX. R. APP. P. 47.1.


                                           DISPOSITION

       Having sustained Appellant’s second issue, we modify the trial court’s judgment by
deleting the order that Appellant pay restitution to the DPS lab in the amount of one hundred
forty dollars and affirm the trial court’s judgment as modified.




                                                 2
                                                                 JAMES T. WORTHEN
                                                                    Chief Justice

Opinion delivered June 30, 2014.
Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.




                                              (DO NOT PUBLISH)




                                                           3
                                   COURT OF APPEALS

      TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

                                            JUDGMENT

                                              JUNE 30, 2014


                                          NO. 12-13-00178-CR


                                       MAURICE V. CAIN,
                                            Appellant
                                               V.
                                      THE STATE OF TEXAS,
                                            Appellee


                                 Appeal from the 241st District Court
                         of Smith County, Texas (Tr.Ct.No. 241-0010-13)

                       THIS CAUSE came on to be heard on the appellate record and the briefs
filed herein; and the same being inspected, it is the opinion of the Court that the trial court’s
judgment below should be modified and, as modified, affirmed.
                       It is therefore ORDERED, ADJUDGED and DECREED that the trial
court’s judgment below be modified by deleting the order that Appellant pay restitution to the
DPS lab in the amount of one hundred forty dollars; and as modified, the trial court’s judgment
is affirmed; and 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.
