dissenting.
Since the record clearly shows that applicant has not met his burden in showing that restitution was not part of the plea agreement, I dissent. Ex parte Empey, 757 S.W.2d 771, 775 (Tex.Cr.App.1988).
The facts show that on February 8, 1991 in the 221st Judicial District Court of Montgomery County, applicant pled guilty in cause numbers 90-09-01053-CR (enhanced), 90-10-01225-CR, 90-10-01226-CR, 90-10-1227-CR, and 90-10-01228-CR to the offenses of burglary of a habitation. Pursuant to a plea bargain agreement, the trial court sentenced applicant to thirty years’ confinement in the Texas Department of Criminal Justice, Institutional Division for each charge with the sentences to run concurrent. The trial court also ordered included in the judgment in cause number 90-10-01225-CR that applicant “pay restitution in the total sum of $10,988.20 for the benefit of (1) $250.00 to Donald Snortland, [specific street address]; (2) $10,738.20 to U.S.A.A, [specific post office box address]; and said sum to be payable to the District Clerk of Montgomery County, Texas upon Defendant’s release on parole or mandatory supervision [sic].”
Applicant filed an application for an Article 11.07, V.AC.C.P., post-conviction writ of ha-beas corpus contending the restitution order violates due process of law under the Fourteenth Amendment to the United States Constitution and due course of law under Article I, Section 19 of the Texas Constitution because he was given no notice and no opportunity to be heard, and the victim to which he was to pay restitution was a third-party not related to the charged offense.
We ordered the trial court to supplement the record with relevant documents or conduct an evidentiary hearing in order to make findings of fact as to whether the restitution was part of the plea agreement or was even discussed. The prosecutor submitted an affidavit stating in part the following:
“During plea negotiations, it is my practice to make notations in the District Attorney’s file concerning the negotiations. I use a standard form that remains in the file. The form pertaining to the above-numbered cause indicates total restitution of $10988.20 with $250 of said total sum for the benefit of Donald Snortland and $10738.20 of said total sum for the benefit of U.S.S.A. It is my practice to include in plea negotiations the sums for restitution when the victim has provided this information. I do not include these sums without first informing defense counsel, and, in this case, these sums were included in the *8judgment. The judgment (original and copy for the defendant) was given to defense counsel prior to the defendant entering his plea.” (emphasis added).
On the other hand, defense counsel’s affidavit states only that although it is his “practice to include in plea negotiations sums for restitution, if the District Attorney requires it as a condition of a plea bargain agreement” and his “records do not indicate that restitution was requested in this ease,” he does “not now recall whether this information was relayed to me or not by (the Assistant District Attorney),” and whether he “relayed any information to my client regarding restitution.” (emphasis added).
A review of the trial record reveals no discussion of restitution in the taking of applicant’s plea. The trial court’s findings of fact state that the sums were included in the judgment and that the State gave a copy of the judgment to defense counsel prior to the applicant entering his plea. The trial court recommended that the requested relief be denied. Applicant has not met his burden to show that restitution was not part of the plea agreement.1 Ex parte Empey, 757 S.W.2d at 775. Therefore, relief should be denied. Id.
Because the majority ignores the facts and established law, I dissent.
CAMPBELL, WHITE and MEYERS, JJ., join this dissent.. In the case on which the majority bases its decision, this Court indicated that as part of a plea bargain a defendant may agree to pay restitution to someone other than the victim of the crime for which the defendant is convicted. Martin v. State, 874 S.W.2d 674, 680 n. 16 (Tex.Cr.App.1994).