                    In The
              Court of Appeals
Sixth Appellate District of Texas at Texarkana
        ______________________________

              No. 06-11-00006-CR
        ______________________________


       CHARLES FLOWERS, JR., Appellant

                          V.

         THE STATE OF TEXAS, Appellee




   On Appeal from the 188th Judicial District Court
                Gregg County, Texas
              Trial Court No. 38842-A




     Before Morriss, C.J., Carter and Moseley, JJ.
       Memorandum Opinion by Justice Carter
                                           MEMORANDUM OPINION

I.          Facts and Procedural Background

            Charles Flowers, Jr., was indicted for burglary of a habitation owned by Deardra Woods.

On August 10, 2010, Flowers entered a plea of guilty after reaching a negotiated plea agreement

with the State and was placed on community supervision for ten years. The plea agreement,

which contained the punishment recommendations, was signed by Flowers and his attorney and

noted that the other punishment recommendations were on the ―conditions of probation sheet.‖

The ―Order Establishing Conditions of Probation‖ (separate from the judgment) also was signed

by Flowers; it required him to pay restitution of $2,425.00 at the rate of $25.00 per month. The

judgment of conviction likewise reflected a restitution due of $2,425.00. No objection was made

to community supervision conditions, including the restitution order.

            Three months later, on November 1, 2010, the State moved to revoke Flowers’ supervision,

alleging that he failed to perform community service and that he had burglarized a home and

building while under supervision. Flowers pled ―not true‖ to the allegations, and after a hearing,

the trial court found that Flowers failed to perform the required community service hours. 1

Pursuant to its finding, the trial court revoked community supervision and sentenced Flowers to

ten years’ incarceration. The judgment of revocation also requires Flowers to pay $2,375.00

restitution to Woods.


1
    The trial court made no finding regarding the State’s allegations that Flowers committed another burglary.


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        The only argument on appeal is that the restitution order should be stricken from the

judgment because there is no evidence establishing the amount to be paid. We affirm the

judgment of the trial court.

II.     Standard of Review

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

v. State, 75 S.W.3d 503, 512 (Tex. App.—Texarkana 2002, pet. ref’d) (citing 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. Id. (citing Montgomery v. State, 810 S.W.2d

372, 380 (Tex. Crim. App. 1990)).

III.    Preservation of Error

        We must first determine if it is necessary for Flowers to preserve the question of whether

the evidence provides a factual basis for the restitution order.2

        The Texas Court of Criminal Appeals in Idowu v. State held that to preserve error, the

defendant must complain at the trial level about the appropriateness of (as opposed to the factual

basis for) a trial court’s restitution order. 73 S.W.3d 918, 921 (Tex. Crim. App. 2002). As we

understand it, Flowers’ complaint concerns the factual basis for the restitution order, not the

appropriateness of the order. This constitutes a sufficiency of evidence issue which may be

reviewed even though it is first raised on appeal. Id. at 922.


2
 Flowers does not challenge the trial court’s revocation of his community supervision or the amount of $2,425.00 in
restitution adjudicated at the time of his negotiated plea agreement.

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IV.    Sufficiency of Evidence

       Due process requires that evidence in the record must exist to show that the amount of

restitution has a factual basis. Campbell v. State, 5 S.W.3d 693, 696, 699 (Tex. Crim. App. 1999)

(citing Cartwright, 605 S.W.2d at 289). The restitution awarded must be just and have a factual

basis within the loss of the victim. Id.

       In this instance, the total amount of restitution was established at the time Flowers entered

a negotiated plea of guilty. Flowers and his attorney signed all the documents at the time of the

entry of the plea acknowledging restitution in the amount of $2,425.00. There was no dispute

about the amount of restitution, but it was presented to the trial court as a part of the overall

negotiated plea agreement, to which both the State and Flowers ―mutually agreed and

recommended‖ to the judge. If any dispute had existed on this issue, it could have been presented

to the trial court to resolve. TEX. CODE CRIM. PROC. ANN. art. 42.037(k) (West Supp. 2010).

The original restitution order of $2,425.00 is supported by the specific agreement of the parties as

to the appropriateness and accuracy (or factual basis) for the restitution order.

       Flowers was placed on community supervision on August 20, 2010; during his short

supervision period, Flowers reported to the supervision officer two times (September 21 and

October 19). The State moved to revoke Flowers’ supervision based upon allegations that he

failed to perform community service and that he had burglarized a home and/or a building.

Notably, the State did not allege that Flowers failed to pay restitution. From the absence of such



                                                  4
an allegation, it is logical to infer that just as Flowers fulfilled the requirement to report to the

community supervision office, he also satisfied the restitution condition of his community

supervision by paying the $25.00 monthly restitution payments for September and October,

leaving $2,375.00 as the balance. Since the State moved to revoke Flowers’ supervision on

November 1, 2010, he was arrested the next day, remained incarcerated until the hearing in

January 2011, and was then sentenced to a ten-year term, without bond. It can reasonably be

inferred that he made no restitution payment for November or thereafter. Based upon these facts,

we find that there was evidence to support the award of $2,375.00 in restitution.

       Accordingly, we overrule this point of error and affirm the trial court’s judgment.




                                              Jack Carter
                                              Justice

Date Submitted:        September 6, 2011
Date Decided:          September 7, 2011

Do Not Publish




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