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.).
       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-of-

pocket 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.




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          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. Peters2 at

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.



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       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

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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

                                                 –5–
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

                                               –6–
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.



                                                       /Douglas S. Lang/
                                                       DOUGLAS S. LANG
                                                       JUSTICE




Do Not Publish
TEX. R. APP. P. 47.2(A)
140697F.U05




                                                 –7–
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                      JUDGMENT

ALLEN MAURICE LITTLE, Appellant                       On Appeal from the Criminal District Court
                                                      No. 7, Dallas County, Texas
No. 05-14-00697-CR         V.                         Trial Court Cause No. F-0951721-Y.
                                                      Opinion delivered by Justice Lang. Justices
THE STATE OF TEXAS, Appellee                          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.




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