Set Aside and Remand; Opinion issued February 27, 2013




                                                                        In The
                                                  Court of Appeals
                                           Fifth District of Texas at Dallas
                                                             No. 05-12-00299-CR
                                                             No. 05-12-00300-CR

                                        COURTNI MICHELLE SCHULZ, Appellant

                                                                            V.

                                                THE STATE OF TEXAS, Appellee

                                    On Appeal from the Criminal District Court No. 3
                                                 Dallas County, Texas
                                    Trial Court Cause Nos. F10-00501-J, F11-00342-J

                                                 MEMORANDUM OPINION
                                         Before Justices Bridges, FitzGerald, and Myers
                                                   Opinion by Justice Bridges

             Courtni Michelle Schulz waived a jury and pleaded guilty to credit card abuse and theft

of property valued at $500 or more but less than $1, 500 from an elderly person. See TEX. PENAL

CODE ANN. §§ 31.03(a), (e)(3), (f)(3)(A), 32.31(b), (d) (West 2011 & Supp. 2012). Pursuant to

plea agreements, the trial court deferred adjudicating guilt, placed appellant on five years’

community supervision, assessed a $1,000 fine, and ordered $85,506.22 in restitution in each

case. 1 In a single issue, appellant contends the amount of restitution ordered does not have a


1
    The trial court certified appellant has the right to appeal the amount of restitution. See TEX. R. APP. P. 25.2(d).
factual basis in the record and, thus, constitutes an abuse of discretion. Appellant asserts the

proper remedy is to delete the restitution orders entirely. The State concedes there is insufficient

evidence in the record to establish a factual basis for the restitution ordered, but responds the

appropriate remedy is to set aside the amount of restitution ordered and remand to the trial court

to determine a just amount of restitution.

       We review challenges to restitution orders under an abuse of discretion standard.

Cartwright v. State, 605 S.W.2d 287, 288–89 (Tex. Crim. App. [Panel Op.] 1980). A trial court

abuses its discretion when it acts in an arbitrary or unreasonable manner. Montgomery v. State,

810 S.W.2d 372, 380 (Tex. Crim. App. 1990).

       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. TEX. CODE

CRIM. PROC. ANN. art. 42.037(a) (West Supp. 2012). While the sentencing court is authorized to

order restitution, due process requires three restrictions on the restitution a trial court may order:

(1) the amount must be just and supported by a factual basis within the record, (2) the restitution

ordered must be only for the offense for which a defendant is criminally responsible, and (3) the

restitution ordered must be proper only for the victims of the offense for which a defendant is

charged. Cantrell v. State, 75 S.W.3d 503, 512 (Tex. App.—Texarkana 2002, pet. ref’d).

       In these cases, there is no evidence in the record to support the restitution order of

$85,506.22. We sustain appellant’s issue as to the amount of restitution ordered.

       When the record evidence is insufficient to support the amount of restitution ordered, the

proper procedure is to set aside the amount of restitution and remand the cases for a hearing to

determine a just amount of restitution, and abate the appeals. Barton v State, 21 S.W.3d 287,

290 (Tex. Crim. App. 2000); Cartwright, 605 S.W.2d at 289. Accordingly, we set aside the trial



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court’s restitution order and remand the cases to the trial court for a new determination of the

proper amount of restitution.




                                                    /David L. Bridges/
                                                    DAVID L. BRIDGES
                                                    JUSTICE



Do Not Publish
TEX. R. APP. P. 47
120299F.U05




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