Opinion issued June 9, 2015




                                    In The

                              Court of Appeals
                                   For The

                         First District of Texas
                           ————————————
                              NO. 01-14-00900-CR
                          ———————————
                       FELICITY BURRIS, Appellant
                                      V.
                     THE STATE OF TEXAS, Appellee


                  On Appeal from the 180th District Court
                          Harris County, Texas
                      Trial Court Case No. 1344231




                        MEMORANDUM OPINION

      Felicity Burris pled no contest to the second-degree felony of arson of a

commercial building, and the trial court assessed her punishment at five years’

deferred adjudication. It further ordered her to pay $25,851 in restitution. On
appeal, Burris contends that the trial court abused its discretion in ordering her to

pay the portion of restitution attributed to demolition costs of the damaged

building, totaling $12,146. We affirm.

                                    Background

      In February 2012, Burris managed Late Nite Pies, a pizza restaurant. Her

husband, Michael Williams, owned the business. Williams and Burris rented the

building from a corporation owned by Sophia Zoes.            A fire occurred in the

restaurant. An arson investigator discovered four areas of the fire’s origin and a

plastic gasoline can. Burris was charged with arson and pleaded no contest.

      The trial court held a restitution hearing, in which the State offered

testimony about the losses that occurred as a result of the fire. During the hearing,

Burris objected to the trial court’s consideration of $12,146 in cleanup and

demolition costs as part of the restitution. The trial court overruled her objection.

                                     Discussion

      Standard of Review and Applicable Law

      We review a challenge to a trial court’s restitution order under an abuse of

discretion standard. See Campbell v. State, 5 S.W.3d 693, 696 (Tex. Crim. App.

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

abuse of discretion occurs if the trial court acts without reference to any guiding

principles or acts arbitrarily or unreasonably. Montgomery v. State, 810 S.W.2d



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372, 380 (Tex. Crim. App. 1990) (citing Downer v. Aquamarine Operators, Inc.,

701 S.W.2d 238, 241–42 (Tex. 1985)); Tyler v. State, 137 S.W.3d 261, 266 (Tex.

App.—Houston [1st Dist.] 2004, no pet.).

      The Texas Code of Criminal Procedure provides that a trial judge “may

order the defendant to make restitution to any victim of the offense.” TEX. CODE

CRIM. PROC. ANN. art. 42.037(a) (West Supp. 2014); Hanna v. State, 426 S.W.3d

87, 92 (Tex. Crim. App. 2014).          If a defendant is placed on community

supervision, the payment of restitution to the victim may be a condition of the

community supervision.        TEX. CODE CRIM. PROC. ANN. art. 42.037(h);

42.12 § 11(b).

      Texas law provides three limits on the amount of restitution a trial court may

order: (1) the amount must be just and supported by a factual basis within the loss

of the complainant; (2) the restitution ordered must be for the offense for which the

convicted person is criminally responsible; and (3) restitution is proper only for the

victim or victims of the offense for which the offender is charged. Campbell, 5

S.W.3d at 696–97; Tyler, 137 S.W.3d at 266. The court should consider “the

amount of loss sustained by any victim” and “other factors the court deems

appropriate” when determining the amount of restitution to order. TEX. CODE

CRIM. PROC. ANN. art. 42.037(c). In calculating the amount of restitution owed as

a result of property damage, the court may order the defendant to pay an amount



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equal to the greater of “(i) the value of the property on the date of the damage, loss,

or destruction; or (ii) the value of the property on the date of sentencing, less the

value of any part of the property that is returned on the date the property is

returned.” Id. at 42.037(b)(1)(B). The prosecution bears the burden of proving the

amount of loss sustained by the victims of a crime by a preponderance of the

evidence to factually support a restitution order. Id. at 42.037(k).

      Analysis

      Burris argues that the restitution award for demolition costs lacks a sufficient

factual basis in the record. The State offered the testimony of James Zoes, the

property owner’s son and accountant. He prepared the expense documents after

the fire. He testified that the walls of the building remained standing after the fire,

but that they contained cracks. He further testified that these walls could not be

used for another building or for another purpose.         Zoes testified that he had

received an estimate of $12,146 for demolition costs for tearing down the walls

and clearing the property of debris. Although the demolition had not occurred, he

testified that it was required to clear the property and would occur “[w]ithout a

doubt.”

      Burris observes that the Zoeses had not finally determined what to do with

the walls at the time of the restitution hearing. James Zoes testified that the Zoeses

      [did] not want to tear the building down without . . . knowing all this
      information of what we are getting into. The building could be useful

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      standing or if it turns out it is useful to tear down, it will be torn down. And
      either way, a new building will be put up. It is just we are not sure of what
      options we have, so we are trying to get these options and then make logical
      decisions and go forward.

But Zoes’s testimony was uncontroverted that the walls themselves were not

usable in their current state. Based on this testimony and the estimate of $12,146

for costs of demolition, the trial court was within its discretion in setting restitution

at $25,851 to include these costs as necessary to restore the value of the property

before the fire. See TEX. CODE CRIM. PROC. ANN. art. 42.037(c); Campbell, 5

S.W.3d at 696–97; Tyler, 137 S.W.3d at 266.

                                      Conclusion

      We hold that the record supports the restitution ordered by the trial court.

The trial court thus did not abuse its discretion in ordering Burris to pay $12,146

for demolition costs, as a portion of the restitution required as a community

supervision condition. We therefore affirm the trial court’s order.




                                               Jane Bland
                                               Justice

Panel consists of Justices Jennings, Bland, and Brown.

Do not publish. See TEX. R. APP. P. 47.2(b).



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