Opinion
Nos. 05-04-00554-CR, 05-04-00555-CR
Opinion Filed July 6, 2005. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 203rd Judicial District Court, Dallas County, Texas, Trial Court Cause Nos. F03-26947-SP, F03-40790-HP. Abated.
Before Justices WRIGHT, BRIDGES, and FITZGERALD.
OPINION
Kirk Durand Thursby appeals his convictions on two offenses of burglary of a habitation. Appellant's attorney filed a brief in which he concludes the appeals are wholly frivolous, without merit, and there are no arguable grounds to advance. See Anders v. California, 386 U.S. 738 (1967); High v. State, 573 S.W.2d 807, 811 (Tex.Crim.App. [Panel Op.] 1978). Counsel delivered a copy of the brief to appellant and we advised him of his right to respond. Appellant, however, did not file a pro se response. After conducting our Anders review, we conclude arguable issues exist regarding the restitution awarded in each case. We abate the appeals for appointment of new counsel. In conducting our Anders review, we review the entire record to determine whether the appeals are "wholly frivolous" or if there are issues "arguable on their merits." See Anders, 386 U.S. at 744. An appeal is wholly frivolous and lacks merit when it "lacks any basis in law or fact." See McCoy v. Court of Appeals, 486 U.S. 429, 436, 438 n. 10 (1988). All doubts and ambiguous legal questions must be resolved in appellant's favor. See id. at 444. The record shows appellant entered open guilty pleas to the offenses and pleas of true to an enhancement paragraph in each indictment. For each case, appellant signed a judicial confession. During sentencing, both sides requested that the trial court review the presentence investigation report. The complainant in cause no. 05-04-00555-CR testified about his losses. No one testified about the victim's loss in cause no. 05-04-00554-CR. In each case, the trial court assessed punishment at twenty years confinement, a $2,500 fine, and restitution to the victim. The trial court did not orally pronounce how much restitution was to be paid to the victims. However, the written judgments order appellant to pay, as a condition of parole, $19,000 restitution in each case, for a total of $38,000 in restitution. We review a trial court's award of restitution under an abuse-of-discretion standard. Tyler v. State, 137 S.W.3d 261, 266 (Tex.App.-Houston [1st Dist.] 2004, no pet.). A trial court does not abuse its discretion if the restitution is just, it has a factual basis within the victim's loss, the defendant is criminally responsible for the offense, and the restitution is payable to the victim. Campbell v. State, 5 S.W.3d 693, 696-97 (Tex.Crim.App. 1999). In these cases, although the trial court orally ordered the restitution to be paid to the victims, the written judgments contain blank spaces for the names and addresses of the persons receiving the restitution. Thus, we conclude the judgments should be modified to reflect the complainants as the proper payees of the restitution. Additionally, we conclude arguable issues exist regarding the factual sufficiency of the evidence supporting the restitution awarded in each case. In cause no. 05-04-00554-CR, the record does not show any evidence regarding the value of the property stolen. Therefore, there is no evidence in the current appellate record to support the $19,000 in restitution awarded in the trial court's written judgment in cause no. 05-04-00554-CR. In cause no. 05-04-00555-CR, complainant Enrique Turango testified that the burglary cost him $20,000 worth of personal property, including televisions, jewelry, appliances, a DVD player, game console, compact discs, clothing, and food. Turango testified that he and his wife later recovered a microwave oven, a bracelet, and two video games from local pawn shops but he did not testify about the value of the property he recovered. Although Turango's testimony provides some factual basis for the restitution awarded in cause no. 05-04-00555-CR, Turango did not testify as to the value of the stolen property that he recovered. See Garza v. State, 841 S.W.2d 19, 23 (Tex.App.-Dallas 1992, no pet.) (holding restitution should be reduced by value of recovered property). Thus, without making any determination of the merits, we conclude appellant could argue that the evidence is also factually insufficient to support the $19,000 in restitution awarded in cause no. 05-04-00555-CR. We grant appellate counsel's motion to withdraw. See Stafford v. State, 813 S.W.2d 503, 511 (Tex.Crim.App. 1991). We abate the appeals and remand them to the trial court. We order the trial court to appoint new appellate counsel to represent appellant, investigate the record, and file a brief on the merits. See id. In the brief, counsel should discuss the written judgments' failure to designate payees for restitution, the factual sufficiency of the evidence regarding the amount of restitution awarded in each case, and any other grounds that might arguably support the appeals. See id. We further order the trial court to inform this Court in writing of the identity of new counsel and the date new counsel is appointed. Appellant's brief will be due thirty days after new counsel is appointed. The State's brief will be due thirty days after appellant's brief is filed. We remove these causes from the submission docket.