No. 12-04-00085-CR
Order dated March 31, 2006. DO NOT PUBLISH.
Appeal from the County Court at Law No. 2 of Smith County, Texas.
Panel consisted of WORTHEN, C.J. and GRIFFITH, J. DeVASTO, J., not participating.
JAMES T. WORTHEN, Chief Justice.
On original submission, this court affirmed Appellant's conviction and sentence for insurance fraud. See Abbott v. State , No. 12-04-00085-CR, 2005 WL 3589403 (Tex.App.-Tyler, December 30, 2005) (not designated for publication). Upon further consideration, we withdraw our earlier opinion and judgment and issue the following order. See TEX. R. APP. P. 50. Appellant Gary Clifford Abbott appeals his conviction for insurance fraud. In four issues, Appellant asserts that the evidence is not legally or factually sufficient to support his conviction and that the trial court imposed unreasonable conditions of community supervision. We abate.
Court's Imposition of Community Supervision Requirements
Appellant's third issue requires us to abate this appeal. Therefore, we will not address his remaining issues. As a condition of his community supervision, the judge ordered Appellant to pay restitution. In his third issue, Appellant complains that the record contains no factual basis for the restitution amount. Factual Basis for Restitution
The trial court has broad discretion in imposing conditions of community supervision. See TEX. CODE CRIM. PROC. ANN. art. 42.12 § 11(a) (Vernon Supp. 2005). However, where the defendant is ordered to pay restitution as part of his community supervision, the restitution amount must have a factual basis in the record. See Cartwright v. State , 605 S.W.2d 287, 289 (Tex.Crim.App. 1980). Although a trial court may take judicial notice of facts contained within a presentence investigation report (PSI), the reviewing court must also be able to review the judicially noticed content of those reports to determine (1) whether the source information actually establishes the judicially noticed fact and (2) whether the trial court erred in taking judicial notice based upon the quality of the source information. See Brewer v. State , No. 12-01-00369-CR, 2004 WL 1717595, at * 1 (Tex.App.-Tyler July 30, 2004) (not designated for publication). Here, the trial court ordered a PSI prior to the sentencing hearing. When discussing the PSI at sentencing, Appellant's counsel stated that the restitution costs claimed by Appellant's insurance company were fees for investigative services and other fees associated with a civil suit between Appellant and the company. At the State's request, the trial court took judicial notice of the PSI report. The PSI is not in the appellate record. Additionally, we have been informed by the trial court clerk that the PSI was neither included in nor part of the original file in this case. The State presented no evidence at the hearing to substantiate the company's costs claimed for restitution appearing in the PSI. Consequently, the record contains no factual basis for the amount of restitution ordered. CONCLUSION
Having determined that the record contains no factual basis for the restitution amount ordered by the trial court, we abate the appeal, set aside the amount of restitution, and remand to the trial court for a hearing to determine a just amount of restitution. See Barton v. State , 21 S.W.3d 287, 290 (Tex.Crim.App. 2000). The trial court shall, within thirty days after the date of this order (1) conduct the hearing; (2) cause a court reporter to make a record of the hearing; (3) make appropriate orders and findings of fact and conclusions of law; and (4) deliver any orders and findings of fact and conclusions of law to the trial court clerk. The trial court clerk shall (1) prepare a supplemental clerk's record containing all orders and findings of fact and conclusions of law that the trial court renders or makes and (2) file the supplemental clerk's record with the clerk of this court within forty-five days after the date of this order. The court reporter shall prepare and file a supplemental reporter's record containing a transcription of the hearing within forty-five days after the date of this order. If Appellant, after reviewing the revised restitution order, determines that he should amend or supplement his brief, his amended or supplemental brief will be due thirty days after the supplemental record is filed. If Appellant files an amended or supplemental brief, the State will have thirty days thereafter to file a responsive brief. IT IS SO ORDERED.