Allen Maurice Little v. State

Affirmed in part and Abated; Opinion Filed August 25, 2015.

In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-14-00697-CR

ALLEN MAURICE LITTLE, Appellant
V.
THE STATE OF TEXAS, Appellee

On Appeal from the Criminal District Court No. 7
Dallas County, Texas
Trial Court Cause No. F-0951721-Y

MEMORANDUM OPINION
Before Justices Bridges, Francis, and Lang
Opinion by Justice Lang
Appellant Allen Maurice Little appeals his conviction for aggravated assault. See TEX.

PENAL CODE ANN. §§ 22.01 (West Supp. 2014), 22.02(a) (West 2011). Following a trial, a jury

found Little guilty, assessed punishment at thirty months’ imprisonment, and recommended

community supervision. The trial court suspended the imposition of sentence and placed him on

community supervision for thirty months. In three issues on appeal, Little argues: the evidence

is insufficient to prove (1) he committed aggravated assault and (2) he was not justified in using

force or deadly force in defense of his person; and (3) the trial court erred in ordering him to pay

restitution in the amount of $274,155.07. We decide against Little on his first two issues, and we

affirm the conviction for aggravated assault. We decide in favor of Little on his third issue. We
set aside the amount of restitution, abate the appeal, and remand the case to the trial court for a

hearing to determine a just amount of restitution.

I. FACTUAL AND PROCEDURAL BACKGROUND

Little was charged by indictment with aggravated assault causing serious bodily injury by

striking Edward “Jim” Arnold with Little’s hand, a deadly weapon, and by forcing Arnold to and

against the floor, a deadly weapon, with Little’s hand. See TEX. PENAL CODE ANN. §§ 22.01,

22.02(a). Little pleaded not guilty and was tried by a jury.

The trial testimony reflects that on the night of December 23, 2008, and into the early

hours of December 24, 2008, Little and two of his friends, John Williams and Daniel Forslund,

were at a bar in Dallas. The complainant, Arnold, was at the same bar with Christopher Hall,

who was also a friend or acquaintance of Little. All five men were drinking that night. The

assault occurred at approximately 1:45 or 2:00 a.m. on December 24, 2008, when Little was

closing out his bar tab.

Jordan Lowery, the bartender and assistant manager of the bar, testified that during “last

call,” which is generally at 1:45 a.m., he heard a “noise” or “commotion.” When he turned, he

saw “someone fall backward and somebody not follow through.” Then, he saw three men

“running” out of the door.

Williams testified that he heard Arnold yelling at Little and heard Arnold say “something

about the only reason that you’re here is because your grandfather raped your grandmother.”

Williams turned to look at Forslund and then heard fighting. When he looked back, “the fight

was over,” and Arnold was on the floor. Forslund testified that Little and Arnold were in an

argument at the bar and that he heard Arnold make an “obscene” or “vulgar” comment about

Little’s heritage. According to Forslund’s testimony, he saw Arnold “lunge” or reach towards

–2–
Little and Little move backwards. Forslund stated that from what he observed, Little was

defending himself, but Forslund did not see Little actually hit Arnold.

Hall testified that he was intoxicated at the time of the assault. He stated that he was

looking at his beer, rather than paying attention to Little and Arnold. Hall did not remember

what Little and Arnold were talking about, did not see Arnold move towards Little, and did not

see or hear the assault. According to Hall, Little “brushed past” him, and when he turned

towards Arnold, Arnold was “falling on the floor.” Hall turned again and saw Little, Forslund,

and Williams “running out the door.” Then Hall went to check on Arnold, who was still on the

floor. Hall testified that Arnold was “passed out” on the floor for “maybe 30 seconds,” and

when he woke up, he was off balance and did not know where he was. Later at Hall’s apartment,

Arnold had a seizure and began bleeding from the nose. Hall called the paramedics, and Arnold

was taken to the hospital. Hall explained that since the assault, Arnold walks differently, wears

implants to hear, and his head is “lopsided” because a portion of his skull had to be removed.

Arnold testified that he was in a coma from December 24, 2008, until January 22, 2009

and he does not have any memory of the assault or the day leading up to it. According to

Arnold, when he “woke up,” he had trouble hearing, he could not stand or walk, and four or five

of his front teeth were broken. Arnold was released from the hospital on February 14, 2009. He

testified that he has had multiple surgeries, his memory is “pretty bad,” he has vertigo and

trouble with balance, which requires him to walk with a cane, and he has seizures, which prevent

him from driving a car.

Dr. Caetano Coimbra, the neurosurgeon who treated Arnold, testified that during his

initial assessment at the hospital Arnold was a 6 on the Glasgow coma scale. He explained that

the Glasgow coma scale grades coma patients “from 3 to 15 according to the seriousness of the

–3–
injury,” and 3 represents the lowest level of verbal response, motor reaction, and eye opening.

Dr. Coimbra stated that at a 6, Arnold “was in a deep level of coma.”

Dr. Coimbra testified that Arnold had “severe traumatic brain injury.” He described a CT

scan of Arnold’s head, taken at 4:50 a.m. on December 24, 2008, that showed three types of

trauma. First, the CT scan showed soft tissue trauma “around the eye socket injury” and on the

back right of his head, indicating he “likely fell or hit his head against the floor and that caused a

hematoma.” Second, the CT scan reflected brain trauma or contusions on both frontal lobes.

The injury to the left side of Arnold’s brain was “bigger than the right,” which indicated that

Arnold had “shift,” “meaning because there was this increased pressure on the left side, the brain

was shifting to the right.” Dr. Coimbra explained, “Arnold got hit on the left side here and then

he likely fell, he hit the right side of the back of his head. Now the brain is like a jelly. . . .

[W]hen he hit the back of his head then the brain went forward and the front part hit the bone and

that then caused the trauma on both frontal lobes.” Finally, the CT scan also showed fractures to

Arnold’s head. He had a fracture on the right back of the head and fractures to both temporal

bones, which “are related to the hearing.” According to Dr. Coimbra, the force from the trauma

to the back of his head “transmitted towards the base of the skull which then transmitted to both

sides and then it fractured [both temporal bones].” Because the bone injury “fractured through

the cochlear” or “inner ear,” it caused Arnold to lose his sense of hearing. Based on his

experience and the injuries to Arnold’s head, Dr. Coimbra opined it would be “unusual” for

Arnold’s injuries to be the result of “just a fall.” He also testified that Arnold could have died

from these injuries.

According to Dr. Coimbra, Arnold’s brain injury was “a big contusion of the brain,” and

it elevated the intracranial pressure inside Arnold’s head. To control the intracranial pressure,

Dr. Coimbra performed surgery on the left side of Arnold’s head to remove “the front part of the

–4–
contusion” and a “large portion of the skull.” About eight months later, when Dr. Coimbra

replaced the piece of skull that had been removed, Arnold developed an infection.

Consequently, Dr. Coimbra had to perform a third surgery to again remove the piece of skull and

replace it with a cement prosthesis.

Dr. Mary Carlile, a physician and physical medicine and rehabilitation specialist, treated

Arnold for approximately four to six weeks in the hospital. She testified that Arnold’s injuries

were life-threatening, caused him permanent memory, coordination, and hearing loss, and caused

him permanent disfigurement as a result of removing a portion of his skull.

Finally, Little testified in his own defense. According to Little, when he approached the

bar to pay his tab, he spoke with Hall and Arnold, who were seated at the bar. During this time,

Hall, who was seated in between Arnold and Little, “muttered something about taxes,” and Little

responded “we all got to pay our part, you know, just kind of joking.” Little testified that Arnold

then stood up on his stool’s foot rail, leaning over Hall, and “screams that he’s a Puerto Rican.”

Little replied, “Okay. I don’t know what that means, but if it matters to you, I’m half Cherokee.”

Arnold sat back down for a second, stood back up, got “even closer” to Little, and said, “You’re

only here because your god damned grandfather raped your fucking grandmother.” According to

Little, Arnold then “just lunged off the bar with his hand out toward [Little], and [Little] hit

him.” Little stated that Arnold was “just inches” away and he thought Arnold was “in the

process” of assaulting him. Little testified that after he hit Arnold, Arnold “grabbed [his] lapels

and started . . . pulling [him] back,” so Little hit him again. According to Little, both times he

punched Arnold around the left eye and in response to Arnold’s actions. After being hit the

second time, Arnold let go of Little, stood with “this quizzical look on his face and just kind of

stopped and started to walk towards the bathroom.” Little stated he then saw Arnold “take two

–5–
steps, trip[ ], [and] fall[],” hitting the back of his head on the floor. Little rejoined Williams and

Forslund, and the three men left the bar.

The jury found Little guilty of aggravated assault causing serious bodily injury, while

using a deadly weapon, assessed punishment at thirty months’ imprisonment, and recommended

community supervision. The trial court suspended imposition of sentence, and placed Little on

community supervision for thirty months. After a hearing, the trial court ordered Little to pay

Arnold restitution in the amount of $274,155.07 as a condition of his community supervision.

II. SUFFICIENCY OF THE EVIDENCE

In issue one, Little argues the evidence is insufficient to support his conviction for

aggravated assault because he did not cause Arnold’s serious bodily injury and did not intend to

cause serious bodily injury. In issue two, Little argues the evidence is insufficient to show he

was not justified in using force or deadly force in defense of his person. The State responds that

the evidence is sufficient to support Little’s conviction and the jury’s rejection of his self-defense

claim.

A. Standard of Review

In determining the sufficiency of the evidence, we view all the evidence in the light most

favorable to the verdict to determine whether “any rational trier of fact could have found the

essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307,

318–19; Dobbs v. State, 434 S.W.3d 166, 170 (Tex. Crim. App. 2014). When the issue of self-

defense is raised before the trier of fact, the reviewing court determines, viewing the evidence in

the light most favorable to the verdict, not only whether the trier of fact could have found the

essential elements of the offense beyond a reasonable doubt, but also whether the trier of fact

could have found against appellant on the self-defense issue beyond a reasonable doubt. See

Saxton v. State, 804 S.W.2d 910, 914 (Tex. Crim. App. 1991). “Circumstantial evidence is as

–6–
probative as direct evidence in establishing the guilt of the actor, and circumstantial evidence

alone may be sufficient to establish guilt.” Dobbs, 434 S.W.3d at 170 (citing Carrizales v. State,

414 S.W.3d 737, 742 (Tex. Crim. App. 2013)).

The jury is the sole judge of credibility and weight to be attached to the testimony of

witnesses, and “can choose to believe all, some, or none of the testimony presented by the

parties.” Chambers v. State, 805 S.W.2d 459, 461 (Tex. Crim. App. 1991). We “may not re-

evaluate the weight and credibility of the record evidence and thereby substitute our judgment

for that of the fact-finder.” Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007)

(quoting Dewberry v. State, 4 S.W.3d 735, 740 (Tex. Crim. App. 1999)). When the record

supports conflicting inferences, we presume that the jury resolved the conflicts in favor of the

verdict, and we defer to that determination. Jackson, 443 U.S. at 326; Dobbs, 434 S.W.3d at

170.

B. Applicable Law

A person commits assault if he “intentionally, knowingly, or recklessly causes bodily

injury to another.” TEX. PENAL CODE ANN. § 22.01(a)(1). A person commits aggravated assault

if the person commits an assault as defined in section 22.01 and the person either (1) causes

serious bodily injury to another or (2) uses or exhibits a deadly weapon during the commission of

the assault. Id. §§ 22.01, 22.02(a). Bodily injury means “physical pain, illness, or any

impairment of physical condition.” Id. § 1.07(a)(8) (West Supp. 2014). Serious bodily injury

means “bodily injury that creates a substantial risk of death or that causes death, serious

permanent disfigurement, or protracted loss or impairment of the function of any bodily member

or organ.” Id. § 1.07(a)(46).

A deadly weapon is “anything that in the manner of its use or intended use is capable of

causing death or serious bodily injury.” Id. § 1.07(a)(17)(B). The State may prove that “any

–7–
object” is a deadly weapon “by adducting sufficient evidence that it was, in fact, ‘manifestly

designed, made, or adapted for the purpose of inflicting death or serious bodily injury.’” Thomas

v. State, 821 S.W.2d 616, 620 (Tex. Crim. App. 1991) (quoting Walker v. State, 543 S.W.2d 634,

636 (Tex. Crim. App. 1976)). “[I]t is not necessary to verify that the object was really capable of

causing death, either in the manner of its actual use or in the manner of its intended use.” Id.

Depending upon the evidence shown, both a hand and the ground can be deadly weapons. Lane

v. State, 151 S.W.3d 188, 191 (Tex. Crim. App. 2004) (concluding a hand can be a deadly

weapon); McCallum v. State, 311 S.W.3d 9, 18 (Tex. App.—San Antonio 2010, no pet.) (citing

Johnston v. State, 150 S.W.3d 630, 639 (Tex. App.—Austin 2004, no pet.)) (stating a hand and

the ground can be deadly weapons). The injuries, if any, inflicted on the victim are factors to be

considered in determining whether an object was used as a deadly weapon. Lane, 151 S.W.3d at

191.

A person acts intentionally “when it is his conscious objective or desire to engage in the

conduct or cause the result.” Id. § 6.03(a) (West 2011). A person acts knowingly “with respect

to a result of his conduct when he is aware that his conduct is reasonably certain to cause the

result.” Id. § 6.03(b). A person acts recklessly “when he is aware of but consciously disregards

a substantial and unjustifiable risk that the circumstances exist or the result will occur.” Id.

§ 6.03(c). Direct evidence of the requisite intent is not required. Hart v. State, 89 S.W.3d 61, 64

(Tex. Crim. App. 2002). Intent may be inferred from circumstantial evidence, such as the acts,

words, and conduct of the accused. Guevara v. State, 152 S.W.3d 45, 50 (Tex. Crim. App.

2004).

“[A] person is justified in using force against another when and to the degree the actor

reasonably believes the force is immediately necessary to protect the actor against the other’s use

or attempted use of unlawful force.” TEX. PENAL CODE ANN. § 9.31(a) (West 2011). “A person

–8–
is justified in using deadly force against another when and to the degree he reasonably believes

the deadly force is immediately necessary to protect himself against the other’s use or attempted

use of unlawful deadly force.” Id. § 9.32(a) (West 2011). Self-defense is a defense to

prosecution. See id. §§ 2.03, 9.02 (West 2011). When a defendant raises self-defense, the State

has the final burden of persuasion to disprove it. This is not a “burden of production, i.e. one

requiring the State to affirmatively produce evidence refuting the self-defense claim, but rather a

burden requiring the State to prove its case beyond a reasonable doubt.” Saxton, 804 S.W.2d at

913. The issue of self-defense is an issue of fact to be determined by the jury. Id.

C. Application of the Law to the Facts

1. Aggravated Assault

In issue one, Little first argues that the evidence is insufficient to prove that his punching

Arnold caused Arnold’s serious bodily injury. Little testified that he punched Arnold twice

around the left eye, and then Arnold walked away, tripped, and fell to the ground. Accordingly,

Little argues that Arnold’s fall to the ground after tripping caused his serious bodily injury.

Hall testified that Arnold was “passed out” for approximately thirty seconds after the

assault. When he woke up, he was off balance and did not know where he was. Later that night,

Arnold had a seizure and bled from the nose. Finally, Hall stated that since the assault, Arnold

walks differently, wears implants to hear, and his head is “lopsided.”

Arnold testified that he was in a coma from December 24, 2008, until January 22, 2009.

He stated that he was hospitalized until February 14, 2009, and had undergone multiple

surgeries. According to Arnold, he now has memory and hearing problems. He also has vertigo

and trouble with balance, requiring him to use a cane to walk, and he suffers from seizures,

which prevent him from driving a car. Dr. Coimbra explained that Arnold had soft tissue trauma

around his eye socket and on the back of his head, contusions on both frontal lobes of his brain,

–9–
and fractures one the back right portion of his skull and both temporal bones. To control the

pressure caused by the brain trauma, Dr. Coimbra had to surgically remove a “large portion” of

Arnold’s skull. When that portion of Arnold’s skull was replaced months later, Arnold

developed an infection. Consequently, Arnold required a third surgery to again remove the bone

and replace it with a cement prosthesis. Dr. Coimbra testified that these injuries could have

killed Arnold. Additionally, Dr. Carlile, the physical medicine and rehabilitation specialist who

treated Arnold, testified that Arnold’s injuries were life-threatening, caused him permanent

memory, coordination, and hearing loss, and caused him permanent disfigurement as a result of

removing a portion of his skull. Accordingly, Arnold’s injuries constituted serious bodily injury.

See TEX. PENAL CODE ANN. §§ 1.07(a)(8), 1.07(a)(46).

Aggravated assault causing serious bodily injury “necessarily implies the use of a deadly

weapon.” Blount v. State, 257 S.W.3d 712, 714 (Tex. Crim. App. 2008). As discussed above,

Arnold suffered serious bodily injury, which required multiple surgeries, permanently impaired

his memory, coordination, and hearing, and caused him permanent disfigurement. See Lane, 151

S.W.3d at 191 (recognizing that injuries inflicted on the victim are factors to be considered in

determining whether an object was used as a deadly weapon). Little testified that he punched

Arnold twice in the head. See id. (concluding a hand can be used as a deadly weapon). Lowery

testified that after he heard a “noise” or “commotion,” he turned and saw “someone fall

backward and somebody not follow through.” Williams testified that he “heard some fighting,”

and when he looked back at Little, “the fight was over,” and Arnold was on the ground. See

Johnston, 150 S.W.3d at 639 (concluding the floor can be used as a deadly weapon). The jury

was entitled to assess the credibility and demeanor of the witnesses who testified at trial. See

Dobbs, 434 S.W.3d at 170. Viewing the evidence in the light most favorable to the prosecution,

we conclude that “any rational trier of fact” could have found beyond a reasonable doubt that

–10–
Little caused Arnold serious bodily injury by using his hand and the floor as deadly weapons.

See id.; Lane, 151 S.W.3d at 191; Johnston, 150 S.W.3d at 639.

Little next argues the evidence is insufficient to show that he intended the specific result

of serious bodily injury and at most intended bodily injury, a misdemeanor. To prove aggravated

assault, the State was required to show that Little intentionally, knowingly, or recklessly

committed an assault that caused serious bodily injury, and used a deadly weapon. See TEX.

PENAL CODE ANN. §§ 22.01, 22.02(a); Landrian v. State, 268 S.W.3d 532, 537–38 (Tex. Crim.

App. 2008) (“The gravamen of the offense of aggravated assault is the specific type of assault

defined in Section 22.01. . . . Aggravated assault increases the penalty for simple ‘bodily injury’

assault if the victim suffers a significantly greater degree of bodily harm—serious bodily injury,

rather than mere bodily injury.”); Butler v. State, 928 S.W.2d 286, 288 (Tex. App.—Fort Worth

1996, pet. ref’d) (concluding a “second” culpable mental state was not required in connection

with the deadly weapon element in conviction for aggravated assault because “[i]t is clear from

the statutory definition of aggravated assault that the culpable mental states of intent, knowledge,

and recklessness relate to the assault element of causing bodily injury to another”).

Viewing the evidence in the light most favorable to the prosecution, Little punched

Arnold twice in the head, causing Arnold to fall to the floor and hit his head. Then Little “ran”

out of the bar, leaving Arnold on the floor. See Clayton v. State, 235 S.W.3d 772, 780 (Tex.

Crim. App. 2007) (recognizing that “a factfinder may draw an inference of guilt from the

circumstance of flight). The jury could have reasonably inferred Little’s intent to cause bodily

injury from Little’s act of punching Arnold in the head twice. See Guevara, 152 S.W.3d at 50;

Fancher v. State, No. 10-09-00121-CR, 2011 WL 1166657, at *3 (Tex. App.—Waco Mar. 30,

2011, pet. ref’d) (not designated for publication) (concluding appellant’s intent to cause bodily

injury could reasonably be inferred from appellant’s act of striking complainant in the head). Dr.

–11–
Coimbra testified it would be unusual that these extensive injuries were caused only by the fall to

the floor. The jury could rationally have concluded that the punches to Arnold’s head knocked

him to the floor where he hit the back of his head, and that the combination of the two caused the

serious brain injuries. Further, the evidence presented established Little’s hands and the floor of

the bar were used in a manner that made them deadly weapons. We conclude that “any rational

trier of fact could have found the essential elements of [aggravated assault] beyond a reasonable

doubt.” See Dobbs, 434 S.W.3d at 170. We decide against Little on his first issue.

2. Self-Defense

In issue two, Little argues the evidence is insufficient to prove that he was not justified in

using force or deadly force in defense of his person. Little testified that while he was closing his

bar tab, Hall “muttered something about taxes,” and Little “joking[ly]” responded “we all got to

pay our part.” Arnold then “scream[ed] that he’s a Puerto Rican.” According to Little, when he

replied that he was half-Cherokee, Arnold said, “You’re only here because your god damned

grandfather raped your fucking grandmother.” Then Arnold “lunged off the bar with his hand

out toward [Little], and [Little] hit him” in the head around his left eye. Little testified that

Arnold next “grabbed” the lapels of his jacket and started “pulling [Little] back,” so Little hit

Arnold again around his left eye.

Little’s testimony alone does not prove his intent was to defend himself. See Sells v.

State, 121 S.W.3d 748, 754 (Tex. Crim. App. 2003) (concluding defendant’s own statement of

intent alone did not render evidence factually insufficient). His self-defense claim was supported

by Forslund’s testimony that he saw Arnold “lunge” at Little and that Little was defending

himself. However, Forslund also testified that he gave a written witness statement in February of

2009, which contradicted his trial testimony. In the statement, Forslund stated that he saw Little

hit Arnold with his fist and did not mention self-defense or Arnold “lunging” at Little. The jury

–12–
did not have to accept Little or Forslund’s testimony concerning self-defense. See Chambers,

805 S.W.2d at 461 (“As factfinder, the jury is entitled to judge the credibility of witnesses, and

can choose to believe all, some, or none of the testimony presented by the parties.”).

Additional evidence in the record supports the jury’s verdict and the jury’s rejection of

Little’s self-defense claim. Williams, Forslund, and Little indicated that the altercation occurred

after Arnold made an insulting comment about Little’s heritage. Additionally, all witnesses

indicated that Little, Williams, and Forslund immediately left or “ran” out of the bar after the

altercation. See Clayton, 235 S.W.3d at 780 (recognizing that “a factfinder may draw an

inference of guilt from the circumstance of flight”). Dallas police detective Rudy Contreras, who

was assigned this case in December of 2008, testified that none of the individuals he interviewed

in the weeks following the incident indicated that Little was acting in self-defense.

The existence of contrary evidence is not enough to support a finding of factual

insufficiency. Lee v. State, 186 S.W.3d 649, 655–56 (Tex. Crim. App. 2006). We must presume

that the jury resolved the conflicts in favor of the prosecution and defer to that resolution. See

Dobbs, 434 S.W.3d at 170. Because the jury, by finding Little guilty, implicitly rejected his self-

defense theory, it necessarily chose not to believe the testimony concerning Little’s self-defense

theory. See Chambers, 805 S.W.2d at 461; see also Smith v. State, 352 S.W.3d 55, 63 (Tex.

App.—Fort Worth 2011, no pet.) (concluding evidence was sufficient to support conviction for

assault despite appellant’s claim of self-defense, which was based on testimony of appellant and

other witnesses who challenged the credibility of the complainant and showed that complainant

had been “physically aggressive in the past”); Thrower v. State, No. 05-07-00730-CR, 2008 WL

963161, at *6 (Tex. App.—Dallas Apr. 10, 2008, no pet.) (not designated for publication)

(concluding evidence was sufficient to support assault conviction despite appellant’s testimony

that he “merely ‘pushed’ complainant away in self-defense” after complainant “uttered a racial

–13–
slur and pushed [appellant] first”). Viewing the evidence in the light most favorable to the

prosecution, we conclude that “any rational trier of fact” could have concluded that Little did not

use force against Arnold because he reasonably believed the force was immediately necessary to

protect himself against the use or attempted use of unlawful force by Arnold. The State refuted

the claim of self-defense by proving the elements of aggravated assault with a deadly weapon

causing seriously bodily injury beyond a reasonable doubt. See Saxton, 804 S.W.2d at 914;

Smith, 352 S.W.3d at 63; Thrower, 2008 WL 963161, at *6. We decide against Little on his

second issue.

Having concluded the evidence is sufficient to support the jury’s finding of guilt and its

rejection of Little’s self-defense claim, we affirm the conviction. We now turn to Little’s issue

regarding restitution.

III. RESTITUTION

A. Standard of Review

We review a trial court’s order of restitution for an abuse of discretion. Cartwright v.

State, 605 S.W.2d 287, 289 (Tex. Crim. App. 1980); Garza v. State, 841 S.W.2d 19, 23 (Tex.

App.—Dallas 1992, no pet.). “A trial court abuses its discretion if no reasonable view of the

record could support the trial court’s ruling.” Riley v. State, 378 S.W.3d 453, 457 (Tex. Crim.

App. 2012).

B. Applicable Law

In addition to any fine authorized by law, the trial court may order a defendant convicted

of an offense to make restitution to any victim of the offense. TEX. CODE CRIM. PROC. ANN. art.

42.037(a) (West 2006). Whether to order restitution is “within the sound discretion of the trial

court.” Cartwright, 605 S.W.2d at 289. “The amount of restitution must be just, and it must

have a factual basis within the loss of the victim.” Campbell v. State, 5 S.W.3d 693, 696 (Tex.

–14–
Crim. App. 1999); id. (holding that due process requires evidence in the record to show that the

amount of restitution set by the trial court has a factual basis). “The proper procedure where the

amount of restitution ordered as a condition of community supervision is not supported by the

record is to abate the appeal, set aside the amount of restitution, and remand the case for a

hearing to determine a just amount of restitution.” Barton v. State, 21 S.W.3d 287, 290 (Tex.

Crim. App. 2000) (citing Cartwright, 605 S.W.2d at 289).

C. Application of the Law to the Facts

Little argues the trial court erred in ordering restitution in the amount of $274,155.07

because (1) there is no factual basis for the amount of restitution ordered; (2) no evidence was

admitted showing the amount of medical expenses incurred by Arnold; and (3) the trial court

cannot order Little to pay restitution for an amount for which Arnold will be reimbursed or

compensated. The State agrees that the evidence is insufficient to support the restitution order.

A restitution hearing was held in the trial court. However, the record contains no

evidence demonstrating the basis for the amount of restitution ordered. Accordingly, the

evidence is insufficient to establish a factual basis for the trial court’s order of restitution. We

conclude the trial court abused its discretion in ordering Little to pay restitution in the amount of

$274,155.07. See Cartwright, 605 S.W.2d at 288–89 (concluding the trial court abused its

discretion in ordering restitution because there was no record evidence to support the amount

ordered by the trial court). We decide Little’s third issue in his favor.

“The proper procedure where the amount of restitution ordered as a condition of

community supervision is not supported by the record is to abate the appeal, set aside the amount

of restitution, and remand the case for a hearing to determine a just amount of restitution.”

Barton, 21 S.W.3d at 290 (citing Cartwright, 605 S.W.2d at 289). Accordingly, we set aside the

–15–
amount of restitution, abate the appeal, and remand the case to the trial court for a hearing to

determine a just amount of restitution. See id.

IV. CONCLUSION

We affirm the trial court’s conviction for aggravated assault. The trial court erred in

ordering Little to pay restitution in the amount of $274,155.07. We set aside the amount of

restitution, abate the appeal, and remand the case for a hearing to determine a just amount of

restitution. See Barton, 21 S.W.3d at 290.

/Douglas S. Lang/
DOUGLAS S. LANG
JUSTICE

Do Not Publish
TEX. R. APP. P. 47.2(b).
140697F.U05

–16–