      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                       NO. 03-07-00014-CR




                             Quintin Joseph Carruthers, Appellant

                                                  v.

                                   The State of Texas, Appellee



      FROM THE DISTRICT COURT OF BELL COUNTY, 264TH JUDICIAL DISTRICT
          NO. 59138, HONORABLE MARTHA J. TRUDO, JUDGE PRESIDING



                             MEMORANDUM OPINION


               Appellant Quintin Joseph Carruthers pleaded guilty to burglary of a habitation. See

Tex. Penal Code Ann. § 30.02 (West 2003). The trial court adjudged him guilty and sentenced him

to twenty years in prison. The trial court also ordered appellant to pay $4,000 in restitution to the

victim of the offense. In his only point of error, appellant contends that there is no factual basis in

the record for the amount of restitution ordered.1 We will affirm the judgment.




       1
          Appellant did not object below to the amount of restitution ordered, nor did he file a motion
for new trial raising the issue. The court of criminal appeals has held, “If a defendant wishes to
complain about the appropriateness of (as opposed to the factual basis for) a trial court’s restitution
order, he must do so in the trial court, and he must do so explicitly.” Idowu v. State, 73 S.W.3d 918,
921 (Tex. Crim. App. 2002) (footnotes omitted). The court did not decide whether a defendant must
object in the trial court to preserve an evidentiary sufficiency claim regarding the amount of
restitution; that is, to challenge the factual basis for the amount of restitution ordered. Id. at 922.
The State does not contend that appellant failed to preserve his point of error.
               The court that sentences a defendant may order him to make restitution to the victim

of the offense. Tex. Code Crim. Proc. Ann. art. 42.037(a) (West 2006). If the offense results in the

permanent loss of property, the court may order the defendant to pay the victim an amount equal to

the value of the property on the date of the loss or on the date of sentencing, whichever is greater.

Id. art. 42.037(b)(1)(B). The court must resolve any dispute relating to the proper amount or type

of restitution, and it is the State’s burden to prove the amount of the victim’s loss by a preponderance

of the evidence. Id. art. 42.037(k). Due process requires that there be evidence in the record to show

that the amount of restitution ordered has a factual basis. Campbell v. State, 5 S.W.3d 693, 697

(Tex. Crim. App. 1999); Cartwright v. State, 605 S.W.2d 287, 289 (Tex. Crim. App. 1980).

               The complaining witness, Douglas Dempsey, testified that he and his wife returned

home from lunch to find that someone had broken into their residence. He described what he found

inside the house:


              There was footprints in the bedroom where they went through the bedroom
       and they jumped across our bed. There was grass and dirt and debris. The drawers
       were open. Stuff was flung around the bedroom. Stereo was missing.

            The TV/DVD combo, 22 inch screen was missing. Approximately 150
       DVDs were missing. . . .

               . . . The kids’ room was—because I have my 11-year-old daughter as well
       resides with her mother. Their room was turned upside down.

              The DVD player only was missing out of their room. And all the drawers
       were open.

                The computer desk drawer was open. I had a substantial amount of money
       in that, that was missing. . . .




                                                   2
Dempsey testified that none of the missing items was recovered. Responding to the prosecutor’s

questions, Dempsey acknowledged filling out a “restitution card” indicating that his total loss was

“about $4,000.” Dempsey confirmed that this was the “sum total” of all the things taken from his

house in the burglary. The trial court referred to this testimony as the basis for the order directing

appellant to pay $4,000 in restitution.

               Appellant argues that Dempsey’s testimony did not provide a factual basis for

the amount of restitution ordered. He complains that Dempsey did not assign a value to any specific

item taken in the burglary. He dismisses Dempsey’s testimony that the total loss was $4,000 as

a “bald statement” unsupported by documentation, detail, or “calculation on how he arrived at

his figure.”

               A similar argument was made in Davis v. State, 757 S.W.2d 386, 389

(Tex. App.—Dallas 1988, no pet.). In that case, a prosecution for manslaughter, the trial court

ordered the defendant to reimburse the victim’s mother for funeral expenses, which she testified

were $3,373.10. Id. The defendant complained on appeal that the testimony did not support the

restitution order because there was no evidence that the expenses incurred were reasonable or

necessary. Id. The court rejected this argument, holding that the mother’s testimony was an

adequate factual basis for the restitution order. Id.

               Appellant relies on the opinion in Cartwright. In that case, the trial court ordered the

defendant to pay the victim of an aggravated assault $36,000 in restitution. Cartwright, 605 S.W.2d

at 288. The only evidentiary support for this order cited by the State was a presentence investigation

report in which the reporting officer stated that he “cannot provide a summary concerning these



                                                  3
amounts of restitution” but indicated that the victim had received $12,000 from his medical insurer

and $2,000 in worker’s compensation benefits. Id. n.2. In other words, the $36,000 restitution order

was little more than a guess. The court of criminal appeals held that there was no factual basis for

concluding that this was an appropriate amount of restitution. Id. at 289.

               In his testimony, Dempsey identified the items stolen during the burglary and said

they were never recovered. Although he did not testify to the value of each item individually, he did

testify that the total value of the unrecovered stolen property was $4,000. During his cross-

examination, appellant’s counsel did not attempt to obtain a more detailed breakdown of Dempsey’s

losses or challenge the accuracy of Dempsey’s testimony regarding his overall loss. We hold that

Dempsey’s testimony was an adequate factual basis for the trial court’s restitution order.

               The point of error is overruled, and the judgment of conviction is affirmed.




                                              __________________________________________

                                              W. Kenneth Law, Chief Justice

Before Chief Justice Law, Justices Waldrop and Henson

Affirmed

Filed: November 29, 2007

Do Not Publish




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