Ruiz, Armando Valdivia v. State

Affirmed and Memorandum Opinion filed March 28, 2006 Affirmed and Memorandum Opinion filed March 28, 2006. In The Fourteenth Court of Appeals ____________ NO. 14-04-01140-CR ____________ ARMANDO VALDIVIA RUIZ, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from County Court at Law Chambers County, Texas Trial Court Cause No. 21294-02 M E M O R A N D U M   O P I N I O N Appellant, Armando Valdivia Ruiz, pleaded guilty to driving while intoxicated and received community supervision. One of the requirements for community supervision imposed was that he pay restitution to the complainant in the amount of $6,000. Appellant challenges the restitution imposed with two points of error: (1) the trial court abused its discretion by considering evidence not before it; and (2) the trial court committed reversible error by not complying with article 42.037 of the Code of Criminal Procedure. We affirm. Factual and Procedural Background On December 25, 2001, appellant, Armando Valdivia Ruiz, was driving while intoxicated. Due to his intoxication, he drove his pickup truck off the road and into complainant=s home. The damage to the home was so extensive that complainant had to tear the home down, and put a trailer in its place. The cost of the trailer was $6,000. Complainant had no insurance on the home; neither did the holder of the mortgage note. Rather than taking his case to trial, appellant pleaded guilty and received community supervision. The trial court imposed terms of community supervision including restitution in the amount of $6,000. Appellant=s insurance company had already settled any civil liability with complainant and the holder of the note when it paid $15,000, which was enough to discharge the mortgage obligation. However, there was nothing left with which to rebuild the home or pay for a trailer. Therefore, the trial court determined that restitution was appropriate. Appellant objected that the trial court improperly considered evidence of the land=s value not offered by either party. Appellant raises this argument on appeal, and also complains that the trial court did not comply with the requirements of article 42.037 of the Code of Criminal Procedure. We will consider these issues together. Analysis I. There is a Factual Basis in the Record for the Restitution Award It is within the trial court=s sound discretion to order restitution. See Bailey v. State, 171 S.W.3d 639, 641 (Tex. App.CHouston [14th Dist.] 2005, no pet.). The trial court abuses that discretion if its decision lies outside the zone of reasonable disagreement. Id. The Code of Criminal Procedure, however, puts limits on that discretion. Id.; see also Tex. Code Crim. Proc. Art. 42.037. The restitution must be limited to the offense charged. Bailey, 171 S.W.3d at 641. Further, the restitution must be limited to the losses suffered as a result of the crime for which the defendant was convicted. Id. It is also important to note that the trial court may not order restitution for a loss if the victim has or will receive compensation from another source. Tex. Code Crim. Proc. Art. 42.037(f)(1). If the trial court complies with these requirements, and there is some factual basis in the record for the award, then we will affirm. See generally Campbell v. State, 5 S.W.3d 693, 696B97 (Tex. Crim. App. 1999). Here, appellant complains that the trial court=s ruling does not have a basis in the record because he made his ruling based upon evidence not in the record; appellant also complains that the court did not comply with article 42.037. We disagree. The trial court compensated the complainant for the loss of his house, which was directly attributable to appellant=s convicted crime. There was testimony that although appellant=s insurance company paid enough money to discharge the mortgage, it did not pay enough to put any sort of structure on the land. There was also testimony that rebuilding the home would cost over $58,000, but the complainant chose instead to purchase a $6,000 trailer. Given this testimony, there is clearly support for the award of $6,000Cthe cost of a replacement structure. Also, given that the trial court could have found an acceptable amount of total compensation would be over $58,000, even though appellant=s insurance company paid $15,000, the restitution does not amount to a double recovery. We affirm the ruling of the trial court. /s/ Wanda McKee Fowler Justice Judgment rendered and Memorandum Opinion filed March 28, 2006. Panel consists of Justices Hudson, Fowler, and Seymore. Do Not Publish C Tex. R. App. P. 47.2(b).