Cartwright v. State
| Decision Date | 17 September 1980 |
| Docket Number | No. 1,No. 64721,64721,1 |
| Citation | 605 S.W.2d 287 |
| Parties | William Alton CARTWRIGHT, Appellant, v. The STATE of Texas, Appellee |
| Court | Texas Court of Criminal Appeals |
James A. Moore, Houston, for appellant.
John B. Holmes, Jr., Dist. Atty., & Larry P. Urquhart & John Holleman, Asst. Dist. Attys., Houston, Robert Huttash, State's Atty., Austin, for the State.
Before ONION, P. J., and PHILLIPS and CLINTON, JJ.
Appeal follows conviction, upon a plea of nolo contendere, for the offense of aggravated assault wherein the trial court assessed punishment at confinement in the Texas Department of Corrections for ten years. Imposition of the sentence was, however, suspended and appellant placed on probation for a period of ten years. The victim of the assault is a peace officer against whose person appellant caused the motor vehicle operated by him to collide, with serious injuries resulting.
In the sole ground of error presented, complaint is made that the trial court abused its discretion and committed reversible error in setting restitution in this cause at $36,000.00 in that there was no probative evidence to support that amount. Though we are constrained to agree that the trial court did err in setting the amount of restitution as it did, a reversal of the instant conviction does not necessarily follow. We will abate the appeal, set aside the amount of restitution and remand for an evidentiary hearing to determine the amount of restitution to be ordered paid by appellant.
At the outset, we note that a transcription of the court reporter's notes has not been forwarded to this Court for review. Though this would preclude any review had a sufficiency to the evidence as it relates to the instant conviction been raised, see generally Herbort v. State, 422 S.W.2d 456 (Tex.Cr.App.1967), such is not the case here. 1 The thrust of appellant's contention is that there is no evidence tending to show that the restitution sum in question is just. It is true, as the State points out in its brief, that a presentence investigation report included in this record sheds some light on the issue of restitution, but we do not agree that the report ". . . provide(s) a sufficient factual basis for the trial court's determination of restitution." Though there is mention in the report as to the victim's financial losses, there is no documentation of the type which would otherwise lead us to conclude that $36,000.00 would "make this victim whole." 2
Certainly whether to order restitution as a condition of probation is within the sound discretion of the trial court. But the dollar amount is a matter that the court "shall determine," Article 42.12, § 6 h, V.A.C.C.P. Due process considerations thus implicated require that there must be evidence in the record to show that the amount set by the court has a factual basis. Thompson v. State, 557 S.W.2d 521, 525-526 (Tex.Cr.App.1977). In Thompson, supra, the Court vacated imposition of a condition for restitution in the amount of $12,000.00 because there was no evidence tending to show that the sum was "just." Rejected was the State's contention therein that since the trial judge was able to observe the victim in court and consider evidence relating to the victim's condition at the emergency room, there...
To continue reading
Request your trial
-
Renfro v. State
...Johnson, 68 Haw. 292, 711 P.2d 1295 (1985); and State v. Lefthandbull, 306 Or. 330, 758 P.2d 343 (1988). See likewise Cartwright v. State, 605 S.W.2d 287 (Tex.Cr.App.1980). In People v. Chacon, 125 Ill.App.3d 649, 80 Ill.Dec. 922, 466 N.E.2d 374 (1984), the court recognized that a speculati......
-
Cabla v. State, 120899
...court may not impose a restitution order based upon conduct having no basis in the record. Id. at 628; see also Cartwright v. State, 605 S.W.2d 287, 289 (Tex. Crim. App. 1980)(Principles of due process require there be evidence in the record to show a factual basis for the amount of restitu......
-
Sanders v. State , 02–09–00221–CR.
...discretion when it sets restitution in an amount that is unjust or unsupported by facts. Campbell, 5 S.W.3d at 696 (citing Cartwright v. State, 605 S.W.2d 287, 289 (Tex.Crim.App. [Panel Op.] 1980)). The code of criminal procedure provides that “the court that sentences a defendant convicted......
-
Martin v. State
...as a condition of probation so long as the amount set by the court had a factual basis in the record and was just. Cartwright v. State, 605 S.W.2d 287 (Tex.Crim.App.1980). Effective September 1, 1987, Article 42.12 § 11 was amended to add the following (b) A court may not order a probatione......
-
Intoxication Offenses and Punishment
...App.—Beaumont 1996, no writ).] A court’s review of restitution orders is under an abuse of discretion standard. [ Cartwright v. State , 605 S.W.2d 287, 289 (Tex. Crim. App. [Panel Op.] 1980).] Abuse that violates a defendant’s right to due process occurs when it fails to conform to three li......
-
Punishment Phase
...Where the defendant is ordered to pay restitution, the restitution amount must have a factual basis in the record. Cartwright v. State, 605 S.W.2d 287 (Tex. Crim. App. 1980). It is proper for an appellate court to remand the case to the trial court to conduct a restitution hearing. Simpson ......
-
Punishment Phase
...Where the defendant is ordered to pay restitution, the restitution amount must have a factual basis in the record. Cartwright v. State, 605 S.W.2d 287 (Tex. Crim. App. 1980). It is proper for an appellate court to remand the case to the trial court to conduct a restitution hearing. Simpson ......
-
Intoxication Offenses and Punishment
...App.—Beaumont 1996, no writ).] A court’s review of restitution orders is under an abuse of discretion standard. [ Cartwright v. State , 605 S.W.2d 287, 289 (Tex. Crim. App. [Panel Op.] 1980).] Abuse that violates a defendant’s right to due process occurs when it fails to conform to three li......