Opinion
No. 05-09-00321-CR
Opinion issued August 12, 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 DO NOT PUBLISH.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
We reinstate this appeal. Jason Wesley Willingham raised two issues in his appeal of his conviction for theft of property valued at $20,000 or more but less than $100,000. He first claimed 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. The record showed 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, we concluded restitution was properly part of the written judgment in this case and overruled appellant's first issue. In his second issue, appellant contended the evidence was insufficient to support the amount of restitution ordered in the written judgment and requested a new hearing to determine the prcise amount of restitution owed. After reviewing the record, we agreed the evidence showed 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 sustained appellant's second issue, abated the appeal, and remanded the 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). The trial court conducted a hearing. In an order dated June 30, 2010, the trial court concluded the correct amount of restitution owed by appellant is $23,578.39. On July 7, 2010, appellant filed a motion for rehearing asserting his right to be present at the rehearing on restitution. In its July 8, 2010 response to appellant's motion, the State agreed. We then ordered the trial court to immediately bench warrant appellant, conduct the rehearing on restitution, and transcribe and file the supplemental clerk's and reporter's records to this Court on or before August 19, 2010. The trial court held a hearing on July 30, 2010 in accordance with this Court's July 20, 2010 order and found the correct amount of restitution owed by appellant is $23,578.39. Appellant's second issue is now moot. We have the authority to modify an incorrect judgment when we have the necessary data and information to do so. Tex. R. App. P. 43.2(b); Bigley v. State, 865 S.W.2d 26, 27-28 (Tex. Crim. App. 1993); McCoy v. State, 81 S.W.3d 917, 920 (Tex. App.-Dallas 2002, pet. ref'd). Here, the supplemental clerk's record contains the trial court's order concluding the correct restitution amount owed by appellant. We modify the judgment to show appellant owes restitution of $23,578.39. We affirm the trial court's judgment as modified.