Opinion
No. 05-09-00321-CR
Opinion Filed June 10, 2010. DO NOT PUBLISH. Tex. R. App. P. 47.
On Appeal from the Criminal District Court No. 2 Dallas County, Texas, Trial Court Cause No. F01-00603-QIXI.
Before Justices O'NEILL, FRANCIS, and MURPHY.
MEMORANDUM OPINION
Jason Wesley Willingham appeals his conviction for theft of property valued at $20,000 or more but less than $100,000. The trial court sentenced him to four years in prison and ordered him to pay $25,202.39 in restitution. In two issues, appellant challenges the restitution order in the written judgment. We abate this case and remand it to the trial court for further proceedings. Appellant pleaded guilty based on a plea agreement and was placed on deferred adjudication for ten years. The trial court also assessed a $1000 fine and ordered appellant to pay $25,202.39 in restitution. Nineteen months later, the State filed a motion to adjudicate, alleging appellant had violated three conditions of his community supervision, including failing to pay restitution as directed and being delinquent in the amount of $6375. Appellant entered an open plea of true to the State's allegations. The trial court found appellant guilty, assessed punishment at four years in prison, and announced it would "make restitution part of parole." The written judgment sentences appellant to four years in prison and orders restitution of $25,202.39. In his first issue, appellant claims the restitution order should be deleted from the judgment because the trial court did not specify the amount of restitution when pronouncing appellant's sentence in open court. In a straight probation case, the trial court may order the defendant to pay a fine or restitution during the original plea proceeding that results in probation being granted. Tex. Code Crim. Proc. Ann. art. 42.12, § 11 (Vernon Supp. 2009). If the trial court subsequently revokes the defendant's probation, the fine or restitution is "appropriately included in the judgment revoking probation" whether or not the trial court orally pronounces the fine or restitution order when revoking probation. Coffey v. State, 979 S.W.2d 326, 329 (Tex. Crim. App. 1998); see McCoy v. State, 81 S.W.3d 917, 919 (Tex. App.-Dallas 2002, pet. ref'd). In contrast, in a deferred adjudication case, the defendant is not found guilty nor is he sentenced during the original proceeding; rather, the trial court defers a finding of guilty and places the defendant on deferred adjudication. Taylor v. State, 131 S.W.3d 497, 500 (Tex. Crim. App. 2004). As part of his deferred adjudication, a defendant may also be required to pay a fine or restitution. Tex. Code Crim. Proc. Ann. art. 42.12, § 5(a) (Vernon Supp. 2009). When the State files a motion to adjudicate and the trial court finds defendant guilty, the trial court sets aside the underlying deferred adjudication order and assesses punishment. Taylor, 131 S.W.3d at 500. Because the trial court assesses punishment after setting aside the deferred adjudication order and finding the defendant guilty, any fine or restitution assessed must be orally pronounced at that time to be properly included in the written judgment. McCoy, 81 S.W.3d at 919-20. The record reflects appellant was placed on deferred adjudication and, as a condition of deferred adjudication, ordered to pay monthly restitution amounts of $421. The State later filed a motion to adjudicate. At the hearing, the trial court adjudicated appellant's guilt and, in appellant's presence, sentenced him to four years in prison and ordered restitution. Because the trial court pronounced restitution in appellant's presence, restitution is properly part of the written judgment in this case. Thus, we cannot delete the restitution order from the written judgment. We overrule appellant's first issue. In his second issue, appellant contends the evidence is insufficient to support the amount of restitution ordered in the written judgment. While appellant concedes he was ordered to pay $25,202.39 as a condition of deferred adjudication, he argues he made an "unspecified number of payments in the amount of $300 each." Because the written judgment orders him to pay restitution of $25,202.39 without crediting any amounts already paid, he contends he will be paying back more than $25,202.39 to the injured party. He requests we abate the appeal and remand to the trial court for a hearing on the proper amount of restitution. After reviewing the record, we agree the evidence shows appellant made some restitution payments and the State did not establish the amount of restitution still owing at the time appellant was found guilty. In light of this, we sustain appellant's second issue. We abate this appeal and remand this case to the trial court for a hearing to determine the proper amount of restitution. See Barton v. State, 21 S.W.3d 287, 290 (Tex. Crim. App. 2000) (proper procedure where amount of restitution ordered as condition of community supervision is not supported by record is to abate appeal, set aside amount of restitution, and remand case for hearing to determine just amount of restitution).