Norma Cisneros v. State ( 2018 )

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-17-00317-CR
Norma Cisneros, Appellant
v.
The State of Texas, Appellee
FROM THE DISTRICT COURT OF HAYS COUNTY, 274TH JUDICIAL DISTRICT
NO. CR-14-0755, HONORABLE CHARLES R. RAMSAY, JUDGE PRESIDING
MEMORANDUM OPINION
A jury convicted appellant Norma Cisneros of fraudulent transfer of a motor vehicle
with a value of less than $20,000. See Tex. Penal Code § 32.34(b). The trial court assessed her
punishment at confinement for two years in the State Jail Division of the Texas Department of
Criminal Justice, suspended the imposition of sentence, and placed appellant on community
supervision for five years. The court also ordered her to pay restitution as a condition of community
supervision. In three points of error, appellant challenges the sufficiency of the evidence to support
her conviction, the recipient of the award of restitution, and the amount of restitution awarded. For
the following reasons, we modify the judgment of conviction to reflect the specific restitution
amount and affirm the judgment as modified.
Background1
The jury heard evidence that, on May 21, 2014, John Justus Pinkston was driving his
1964 Lincoln Continental (the vehicle) from Austin to San Antonio when he began having car
trouble. He pulled over in Hays County and called Pete’s Wrecker Service. He spoke with
appellant, who is the daughter-in-law of the owner of Pete’s Wrecker Service. According to
Pinkston, appellant agreed that Pete’s Wrecker Service would tow Pinkston’s vehicle to its yard and
that Blackjack Speed Shop (Blackjack), a car repair shop in San Antonio, would then pick the
vehicle up from Pete’s Wrecker Service and transport the vehicle to its shop. Pete’s Wrecker Service
towed the vehicle to its yard, and Pinkston paid the towing fee, but Blackjack did not pick the vehicle
up from Pete’s Wrecker Service.
On June 16, 2014, appellant submitted completed forms to the Texas Department of
Motor Vehicles for a storage lien and an application for certificate of title. She signed the storage
lien on behalf of Pete’s Wrecker Service, the alleged statutory lienholder, as the affiant. On the form,
she certified the outstanding charges of $600 for towing and storage fees on the vehicle and the dates
that two notices of the outstanding charges were mailed to Pinkston. She further certified that:
(i) “[p]ossession of the vehicle [had] continued for 30 days after the date on which the second notice
of the amount of charges was given,” (ii) the vehicle had been abandoned, (iii) Pete’s Wrecker
Service had purchased the vehicle by public sale on June 16, 2014, and (iv) she had complied with
1
Because the parties are familiar with the facts of the case, its procedural history, and the
evidence adduced at trial, we provide only a general overview of the facts of the case here. We
provide additional facts in the opinion as necessary to advise the parties of the Court’s decision and
the basic reasons for it. See Tex. R. App. P. 47.1, 47.4. The facts recited are taken from the
testimony and other evidence presented at trial.
2
all applicable statutes and regulations affecting the title transfer of a stored vehicle. On the
application for certificate of title, she signed as the seller on behalf of Pete’s Wrecker Service and
as the purchaser. The required notices to Pinkston, however, were mailed to “411 Brazo St” instead
of “411 Brazos Street,” which was Pinkston’s address as the vehicle’s registered owner. The notices
were returned to appellant, marked “not deliverable as addressed” and “unable to forward.” The
Texas Department of Motor Vehicles issued title of the vehicle to Pete’s Wrecker Service, effective
June 17, 2014.
Around July 30, 2014, Pinkston called Blackjack to check on the status of the
vehicle’s repair and found out that Blackjack had not picked the vehicle up from Pete’s Wrecker
Service. Pinkston called Pete’s Wrecker Service and spoke to appellant who informed him that he
“didn’t own the vehicle anymore, it was their vehicle.” After speaking with appellant, Pinkston went
to Pete’s Wrecker Service and located the vehicle at Nobleman Services, a mechanic shop next door
to Pete’s Wrecker Service. Around this time, Pinkston’s father also became involved, speaking with
appellant about the vehicle and hiring an attorney.
On August 1, 2014, Pete’s Wrecker Service sold the vehicle for $16,000 to
Nathan Wilson who lived in Florida. At the request of Pete’s Wrecker Service, the owner of
Nobleman Services posted online advertisements beginning on July 30, 2014, that the vehicle was
for sale. Wilson traveled from Florida and, after inspecting the vehicle on August 1, 2014, agreed
to purchase it for $16,000. Wilson paid cash for the vehicle, the vehicle’s title was transferred from
Pete’s Wrecker Service to Wilson, and Wilson transported the vehicle to Florida.
3
The Hays County Sheriff’s Office and the Texas Department of Licensing and
Regulation (TDLR) opened investigations concerning the circumstances surrounding the transfer of
the vehicle’s title from Pinkston. In the TDLR’s administrative proceeding, Pete’s Wrecker Service
entered into a settlement agreement in February 2015 in which it admitted to violating notice and
timing requirements for abandoned vehicles and agreed to pay an administrative penalty of $1,800.
See Tex. Occ. Code §§ 2303.151 (setting forth required notices and time periods for sending notices
to vehicle’s owner when vehicle towed to storage facility), .154(a) (addressing second notice, time
frame for considering vehicle abandoned, and requirement for reporting abandonment to law
enforcement); 16 Tex. Admin. Code §§ 85.703(b)(1) (Texas Dep’t of Licensing & Regulation,
Responsibilities of Licensee–Notice to Vehicle Owner or Lienholder), 85.704(a) (Responsibilities
of Licensee–Second Notice; Consent to Sale); see also Tex. Transp. Code §§ 683.031–.034
(addressing abandoned motor vehicles left in storage facilities). Appellant’s father-in-law signed
the settlement agreement on behalf of Pete’s Wrecker Service.
As a result of the investigation by the Hays County Sheriff’s office, appellant was
arrested in August 2014 and indicted in October 2014 for fraudulent transfer of a motor vehicle with
a value of less than $20,000. The guilt-innocence phase of appellant’s trial occurred in
January 2017. The State’s witnesses at trial were Pinkston, his father, a TDLR employee, and a
sergeant with the Hays County Sheriff’s office. Pinkston testified about his conversations with
appellant concerning the vehicle, including their initial conversation in which they agreed that Pete’s
Wrecker Service would tow the vehicle to its yard and that Blackjack would then pick the vehicle
up, and their subsequent conversation in which appellant told him that the vehicle no longer
4
belonged to him. He confirmed that he had not received any notices from Pete’s Wrecker Service
or notice of a public auction and described locating the vehicle at Nobleman Services after appellant
had told him that the vehicle no longer belonged to him. He also testified that he had purchased the
vehicle for around $35,000 and then put additional work into it, for a total investment of
around $130,000.
Pinkston’s father confirmed that Pinkston purchased the vehicle for $35,000 and
testified to an additional investment of $123,000 for “custom work.” He further testified that, when
he spoke with appellant, she told him that the vehicle belonged to her because they “had left [the
vehicle] there too long” and that “it was already gone,” but that he found the online advertisement
listing the vehicle for sale that had been posted by Nobleman Services after he spoke with appellant.
In an attempt to resolve the dispute, he testified that he offered $5,000 for the vehicle through an
attorney “just to clear all possible bills or anything” but never received a response.
The TDLR employee testified generally about statutory and regulatory requirements
concerning abandoned vehicles, including required notices and applicable time periods, and the
sergeant testified about her investigation concerning the vehicle and the arrest of appellant. The
State’s exhibits included a recording of the sergeant’s conversation with appellant and her husband
that led up to appellant’s arrest on August 15, 2014. On the recording, appellant admitted that she
was the person who spoke with Pinkston about towing his vehicle to Pete’s Wrecker Service but
claimed that he “promised” to come get it. She also admitted to speaking with him and his parents
about the status of the vehicle at other times. She told the officer that the vehicle was left too long,
5
and she confirmed that it was sold by private sale for $16,000. She also represented to the officer
that the mechanic across the street had charged $15,000 to repair the vehicle.
In addition to the recording of the officer’s conversation with appellant and her
husband, other State exhibits were: (i) the case file from the TDLR proceeding, including the
settlement agreement; (ii) the online advertisement posted by Nobleman Services on July 30, 2014,
with photographs of the vehicle when it was on its premises; (iii) the letters from Pete’s Wrecker
Service that were mailed to Pinkston at the “411 Brazo St” address and the corresponding envelopes
marked “return to sender,” “not deliverable as addressed,” and “unable to forward”; (iv) the
completed forms for the storage lien and application for certificate of title, both dated June 16, 2014,
and signed by appellant; and (v) the vehicle transfer notification, showing the vehicle had been
transferred from Pete’s Wrecker Service to Wilson on August 1, 2014.
The witnesses for the defense were Glen Smith, who worked at Blackjack and spoke
with Pinkston about picking the vehicle up from Pete’s Wrecker Service; an employee with the Hays
County Clerk’s office who authenticated assumed name certificates for Pete’s Wrecker Service that
showed that its owner was appellant’s father-in-law; the owner of Nobleman Services; and
Steve Cisneros, who is appellant’s husband. In addition to testifying about his conversation with
Pinkston about picking the vehicle up from Pete’s Wrecker Service, Smith testified that the name
of the repair shop was “Blackjack Speed Shop” and that he did not know of a shop named
“Glen’s Blackjack Service,” which was the name used in the indictment.
The owner of Nobleman Services testified about his shop’s repairs to the vehicle
before it was sold to Wilson; his placement of the online advertisements at the request of Pete’s
6
Wrecker Service on July 30, 2014; and the negotiation and sale of the vehicle to Wilson. He testified
that his shop received the vehicle on July 7, 2014, completed repair work on it on July 17, 2014, and
that Pete’s Wrecker Service paid $2,400 for that work. He also testified that the vehicle remained
on his shop’s property until it was sold to Wilson. Appellant’s husband testified that appellant was
not compensated by Pete’s Wrecker Service, that she signed the paperwork to transfer title from
Pinkston to Pete’s Wrecker Service because he was tied up on a phone call at the time, and that he
was not aware of an agreement to have the vehicle sent to Blackjack. He, however, confirmed
appellant’s signatures on the paperwork that transferred title from Pinkston to Pete’s Wrecker
Service and appellant’s involvement in the TDLR proceeding, including her handwritten request
for leniency.
The jury found appellant guilty of fraudulent transfer of a motor vehicle with a value
of less than $20,000, as charged in the indictment. The punishment phase of the trial was to the
court in hearings on March 13, 2017, and May 9, 2017, and the State identified the victims for
purposes of restitution to be Wilson and Pinkston. Immediately prior to the hearing on May 9, 2017,
the trial court considered and granted the State’s motion to return the vehicle to Pinkston. See Tex.
Code Crim. Proc. art. 47.02(a) (authorizing court to order property restored to owner “[o]n the trial
of any criminal action for theft or any other offense involving the illegal acquisition of property”).
Wilson was represented by counsel and testified during the hearing on the State’s motion to return
the vehicle to Pinkston. The trial court also took judicial notice of Wilson’s testimony during the
punishment phase of the trial. Wilson testified that he paid $16,000 for the vehicle and then spent
additional amounts on the vehicle. As the conclusion of the punishment phase, the trial judge made
7
restitution a part of his oral pronouncement of sentence, but he did not set the amount of restitution
at that time, advising the parties that if they could not agree on the amount that the court would hold
a subsequent hearing.
In its judgment of conviction signed on May 9, 2017, the trial court assessed
punishment at confinement for two years in the State Jail Division of the Texas Department of
Criminal Justice, suspended the imposition of sentence, and placed appellant on community
supervision for five years. As to the amount of restitution, the judgment refers to the restitution
order. In its conditions of community supervision signed on the same day, the court also ordered
appellant to pay restitution with the amount of restitution to be determined following a hearing.
Appellant filed a notice of appeal the following day and a motion for new trial on June 2, 2017,
which was overruled by operation of law.
Also relevant to this appeal, the trial court held a restitution hearing in
September 2017. The State’s witness was Wilson who again testified that he paid $16,000 in cash
for the vehicle and that he had spent additional amounts to repair the vehicle. He testified that he
had spent $50,000 on the vehicle, which included the purchase price of $16,000 plus parts. At the
conclusion of this hearing, the trial court ruled that the appropriate restitution was $50,000 payable
to Wilson and that payment would be a condition of community supervision.2 On May 22, 2018,
however, the trial court signed an agreed order to modify the restitution order, reforming the amount
of restitution payable to Wilson to $16,000.
2
The record does not contain a written order reflecting the trial court’s ruling from the
September 2017 hearing on restitution.
8
Analysis
Sufficiency of the Evidence
In her first point of error, appellant challenges the sufficiency of the evidence to
support her conviction for fraudulent transfer of a motor vehicle. She challenges the sufficiency of
the evidence to support several of the elements of the offense, as charged in the indictment.
Standard of Review
Due process requires that the State prove, beyond a reasonable doubt, every
element of the crime charged. Jackson v. Virginia, 443 U.S. 307, 313–14 (1979); Rabb v. State,
434 S.W.3d 613, 616 (Tex. Crim. App. 2014). When reviewing the sufficiency of the evidence to
support a conviction, we consider all the evidence in the light most favorable to the verdict to
determine whether, based on that evidence and the reasonable inferences therefrom, any rational trier
of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson,
443 U.S. at 319; Temple v. State, 390 S.W.3d 341, 360 (Tex. Crim. App. 2013). In our sufficiency
review we must consider all the evidence in the record, whether direct or circumstantial, properly
or improperly admitted, or submitted by the prosecution or the defense. Thompson v. State,
408 S.W.3d 614, 627 (Tex. App.—Austin 2013, no pet.); see Jenkins v. State, 493 S.W.3d 583, 599
(Tex. Crim. App. 2016); Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). We assume
that the trier of fact resolved conflicts in the testimony, weighed the evidence, and drew reasonable
inferences in a manner that supports the verdict. Jackson, 443 U.S. at 318–19. We consider only
whether the factfinder reached a rational decision. See Morgan v. State, 501 S.W.3d 84, 89 (Tex.
Crim. App. 2016) (observing that reviewing court’s “role on appeal ‘is restricted to guarding
9
against the rare occurrence when a fact finder does not act rationally’” (quoting Isassi v. State,
330 S.W.3d 633, 638 (Tex. Crim. App. 2010))).
The trier of fact is the sole judge of the weight and credibility of the evidence. See
Tex. Code Crim. Proc. art. 38.04; Blea v. State, 483 S.W.3d 29, 33 (Tex. Crim. App. 2016); Dobbs
v. State, 434 S.W.3d 166, 170 (Tex. Crim. App. 2014). Thus, when performing an evidentiary
sufficiency review, we may not re-evaluate the weight and credibility of the evidence and substitute
our judgment for that of the factfinder. See Montgomery v. State, 369 S.W.3d 188, 192 (Tex. Crim.
App. 2012). Instead, we must defer to the credibility and weight determinations of the factfinder.
Cary v. State, 507 S.W.3d 750, 757 (Tex. Crim. App. 2016); Nowlin v. State, 473 S.W.3d 312, 317
(Tex. Crim. App. 2015). In addition, we must “determine whether the necessary inferences are
reasonable based upon the combined and cumulative force of all the evidence when viewed in the
light most favorable to the verdict.” Murray v. State, 457 S.W.3d 446, 448 (Tex. Crim. App. 2015)
(quoting Clayton, 235 S.W.3d at 778).
Fraudulent Transfer of a Motor Vehicle
Relevant to this appeal, section 32.34(b)(2) of the Penal Code sets out the elements
for the offense of fraudulent transfer of a motor vehicle:
(b) A person commits an offense if the person acquires, accepts possession of,
or exercises control over the motor vehicle of another under a written or oral
agreement to arrange for the transfer of the vehicle to a third party and:
...
(2) intending to defraud or harm the vehicle’s owner, the person transfers the
vehicle to a third party.
10
Tex. Penal Code § 32.34(b)(2). In conformity with the elements as stated in section 32.34(b)(2) of
the Penal Code, the indictment charged appellant with the offense as follows:
On or about the 15th day of July, A.D. 2014, in Hays County, Texas, the Defendant,
Norma Cisneros, did then and there, after having acquired, accepted possession of,
or exercised control over a motor vehicle of the value of less than $20,000, owned
by John Pinkston, under an oral agreement between the defendant and the said
John Pinkston to arrange for the transfer of the vehicle to Glen’s Blackjack Service,
and intending to defraud and harm the said John Pinkston, intentionally or knowingly
dispose[d] of the vehicle by applying for title to the vehicle before the proper time
line and selling the vehicle to a third party unknown to the grand jury,
AGAINST THE PEACE AND DIGNITY OF THE STATE
As charged in the indictment, appellant challenges the sufficiency of the evidence to support “an oral
agreement,” her “intent to defraud and harm” Pinkston, and the reference to “Glen’s Blackjack
Service.” We address each of these challenges in turn.
1. Evidence of an oral agreement
Appellant argues that there was no proof of “an oral agreement between the defendant
and the said John Pinkston to arrange for the transfer of the vehicle to Glen’s Blackjack Services.”
Appellant focuses on the evidence that Pinkston was the person who spoke with Smith at Blackjack
to arrange for the vehicle to be picked up from Pete’s Wrecker Service and transported to Blackjack
and the lack of evidence of an agreement in which she was responsible for arranging to have the
vehicle transferred to Blackjack from Pete’s Wrecker Service. It is her position that the evidence
showed that the agreement to transfer the vehicle from Pete’s Wrecker Service was only between
11
Pinkston and Blackjack and that her agreement was limited to towing the vehicle to Pete’s Wrecker
Service and then storing it until appellant arranged to have it picked up.
As charged in the indictment, however, the State was not required to prove that
appellant was responsible for all of the logistics of transferring the vehicle to Blackjack—only that
she and Pinkston had an agreement to transfer the vehicle to Blackjack in which she agreed to play
a role. At the time of appellant’s initial conversation with Pinkston—when their agreement was
reached—the vehicle was on the side of the road. Appellant does not dispute that she agreed to
arrange to have the vehicle towed to Pete’s Wrecker Service and other evidence supported that she
also agreed to hold the vehicle until Blackjack picked it up.3 The jury was free to believe Pinkston’s
testimony about his agreement with appellant that Pete’s Wrecker Service would tow the vehicle to
its yard and then “[a] flatbed would be brought to [appellant]’s shop to pick up the vehicle from
Blackjack.” See Cary, 507 S.W.3d at 757; Blea, 483 S.W.3d at 33. Nothing more was required to
satisfy the State’s burden to prove an oral agreement between appellant and Pinkston, as charged in
the indictment.
2. Evidence of intent to defraud and harm
Appellant argues that the State failed to prove that she intended to defraud and harm
Pinkston, primarily arguing that the evidence that showed her mistakes in the legal requirements for
providing notices to Pinkston and law enforcement was not proof of intent to defraud.
3
In her briefing, appellant concedes that the evidence showed her agreement to hold the
vehicle, stating: “All of the evidence shows that John Justus Pinkston and appellant merely agreed
that the towing company would tow the car to the towing yard and hold it until Pinkston arranged
to have it picked up by the mechanic shop in San Antonio.”
12
The Penal Code defines “harm” generally to mean “anything reasonably regarded as
loss, disadvantage, or injury.” Tex. Penal Code § 1.07(a)(25) (defining “harm”). The Penal Code
does not define “defraud,” but this Court has applied its plain meaning to explain that “[a] person
defrauds another if she takes or withholds from another ‘some possession . . . by calculated
misstatement or perversion of truth, trickery, or other deception.’” In re E.P., 185 S.W.3d 908, 910
(Tex. App.—Austin 2006, no pet.); see Tex. Penal Code § 31.01(1) (defining “deception”); Garcia
v. State, 630 S.W.2d 303, 305 (Tex. App.—Houston [1st Dist.] 1981, no pet.) (explaining that “use
of deception by an accused is evidence of intent to defraud and harm” and that “deception may take
the form of giving false information . . . or of engaging in behavior designed to avoid detection”).
Concerning a defendant’s intent, it may be “inferred from circumstantial evidence such as acts,
words, and the conduct of the [defendant].” Guevara v. State, 152 S.W.3d 45, 50 (Tex. Crim. App.
2004) (citing Patrick v. State, 906 S.W.2d 481, 487 (Tex. Crim. App. 1995)).
As an initial matter, appellant argues that “the State had to prove that appellant had
the intent to defraud the alleged victim at the time the towing company took possession of the
[vehicle].” It is appellant’s position that, under section 32.34 of the Penal Code, a defendant’s intent
to defraud must coincide with acquiring, accepting possession of, or exercising control over the
vehicle. The plain language of the statute, however, does not support this position. See State
v. Velasquez, 539 S.W.3d 289, 292 (Tex. Crim. App. 2018) (explaining that courts ordinarily
interpret statutes based on their plain meaning). Relevant to this appeal, the element of intent to
defraud or harm is tied to the subsequent transfer of the vehicle to a third party. See Tex. Penal Code
§ 32.34(b)(2) (stating that person commits offense if “person acquires, accepts possession of, or
13
exercises control over the motor vehicle of another under a written or oral agreement to arrange for
the transfer of the vehicle to a third party and: . . . (2) intending to defraud or harm the vehicle’s
owner, the person transfers the vehicle to a third party”). Thus, we decline to limit our review of the
evidence to appellant’s actions on May 21, 2014, when Pete’s Wrecker Service took possession of
the vehicle.
Turning to appellant’s primary argument concerning the evidence of her intent, she
argues that the evidence showing that she failed to comply with the legal requirements for abandoned
vehicles did not show “an intent to defraud, but rather show[ed] a misunderstanding of the
technicalities of the law regarding abandoned vehicles” and that there was “no evidence of any kind
of deceit or deception on the part of appellant.” Although appellant presented some evidence to
support a finding that she misunderstood the legal requirements for abandoned vehicles, the jury
heard appellant’s recorded admission to the sergeant that she had been handling title transfers for
twenty years in this type of situation.
Other evidence also showed that appellant was aware of the applicable legal
requirements but that she consciously chose not to follow them. For example, the form for the
storage lien that she signed as the affiant and submitted on June 16, 2014, lists the statutory time
periods for sending the required notices and proceeding to foreclose on a storage lien, expressly
stating the required steps for foreclosure, but she did not follow the stated time periods or required
steps. She did not mail the required notices to Pinkston within the required time periods—even if
they had been properly addressed—or notify law enforcement, and she proceeded to foreclose on the
storage lien before the time period for doing so. Other violations of the applicable laws as stated on
14
the storage lien form included selling the vehicle by private sale, and not public auction; not paying
the balance of the proceeds from the vehicle’s sale to Pinkston; and applying for the certificate of
title before the time period for doing so. The evidence also showed that appellant participated in the
TDLR administrative proceeding and that Pete’s Wrecker Service admitted to multiple violations
concerning the vehicle.
There also was evidence of appellant’s use of deception. See In re E.P., 185 S.W.3d
at 910; Garcia, 630 S.W.2d at 305. Pinkston and his father testified that appellant falsely
represented to them prior to August 1, 2014, that the vehicle already had been sold and that “it was
already gone.” Appellant also represented to the sergeant on the recorded conversation that
Nobleman Services charged $15,000 to repair the vehicle, but the owner of Nobleman Services
testified that the actual charge for the repair was around $2,400, and appellant did not return any of
the proceeds to Pinkston from the vehicle’s sale. Appellant continued to represent that Pinkston
owed the towing fee—even though he had already paid it—and storage fees after the vehicle’s title
was transferred to Pete’s Wrecker Service. The jury reasonably could have inferred from this
evidence of appellant’s acts, words, and conduct that she intended to defraud and harm Pinkston.
See Tex. Penal Code §§ 1.07(a)(25) (defining “harm”), 31.01(1) (defining “deception”); Guevara,
152 S.W.3d at 50; see also In re E.P., 185 S.W.3d at 910; Garcia, 630 S.W.2d at 305.
15
3. Reference to “Glen’s Blackjack Service”
Finally, as support for her position that the evidence was insufficient to support her
conviction, appellant focuses on the evidence that the repair shop referenced in the indictment
was actually named “Blackjack Speed Shop,” not “Glen’s Blackjack Service” as alleged in
the indictment.
“Little mistakes or variances that do not prejudice a defendant’s substantial rights are
immaterial” and are not considered in reviewing the sufficiency of the evidence. See Byrd v. State,
336 S.W.3d 242, 247–49 (Tex. Crim. App. 2011); see id. (contrasting immaterial and material
variances and failures of proof and providing examples of immaterial variances); Gollihar v. State,
46 S.W.3d 243, 258 (Tex. Crim. App. 2001) (holding that hypothetically correct jury
charge—standard for measuring sufficiency of evidence—need not incorporate allegations that give
rise to immaterial variances). A variance is material if it deprived the defendant of sufficient notice
of the charges against him such that he could not prepare an adequate defense or would subject him
to the risk of being prosecuted twice for the same offense. Byrd, 336 S.W.3d at 247–48; see Fuller
v. State, 73 S.W.3d 250, 253–54 (Tex. Crim. App. 2002) (explaining when variance is material and
concluding that variance in victim’s name was immaterial because there was “no indication in the
record that appellant did not know whom he was accused of injuring or that he was surprised by the
proof at trial” and variance “[did] not subject appellant to another prosecution for the same offense”);
see also Johnson v. State, 364 S.W.3d 292, 298–99 (Tex. Crim. App. 2012) (summarizing three
categories of variances).
16
Here the complained-of variance—the name of the repair shop in San Antonio—did
not deprive appellant of sufficient notice of the charges against her such that she could not prepare
an adequate defense. There is nothing in the record to support a finding of surprise as to the identity
of the repair shop involved in the incident or that appellant did not know which repair shop was
referenced in the indictment—appellant called an employee from the repair shop as one of her
witnesses. Further, there is no risk that the variance in the name of the repair shop would subject
appellant to being prosecuted twice for the same offense. Thus, we conclude that any difference
regarding the name of the repair shop in San Antonio was an immaterial variance and that it does
not impact our review of the sufficiency of the evidence. See Johnson, 364 S.W.3d at 298–99; Byrd,
336 S.W.3d at 247–48; Fuller, 73 S.W.3d at 253–54.
Conclusion as to the Sufficiency of the Evidence
Viewing the evidence in the light most favorable to the verdict and assuming that the
jury drew reasonable inferences in a manner that supports the verdict, we conclude that a rational
jury could have found beyond a reasonable doubt that appellant and Pinkston had “an oral
agreement” “to arrange for the transfer of the vehicle” to Blackjack and that appellant intended to
defraud and harm Pinkston by applying for title to the vehicle and then selling it to a third party. See
Tex. Penal Code § 32.34(b)(2); Jackson, 443 U.S. at 319. Thus, we conclude that the evidence was
legally sufficient to support the jury’s finding that appellant was guilty of fraudulent transfer of a
motor vehicle with a value of less than $20,000, as charged in the indictment. We overrule
appellant’s first point of error.
17
Restitution to Wilson
In her second point of error, appellant argues that the trial court erred in ordering
appellant to pay restitution to Nathan Wilson because “he was not a victim of the offense for which
appellant was convicted.”4 We review challenges to restitution orders under an abuse of discretion
standard. See Drilling v. State, 134 S.W.3d 468, 469 (Tex. App.—Waco 2004, no pet.).
“In addition to any fine authorized by law, the court that sentences a defendant
convicted of an offense may order the defendant to make restitution to any victim of the offense.”
Tex. Code Crim. Proc. art. 42.037(a). “[F]or purposes of the restitution statute, a ‘victim’ is any
person who suffered loss as a direct result of the criminal offense.” Hanna v. State, 426 S.W.3d 87,
94 (Tex. Crim. App. 2014). “The phrase ‘as a result of the offense’ includes the notion of both
actual and proximate causation.” Id. at 95. “[T]he damages must be a ‘direct’ result of the
defendant’s criminal offense—that is, the State must prove, by a preponderance of the evidence, that
the loss was a ‘but for’ result of the criminal offense and resulted ‘proximately,’ or foreseeably, from
the criminal offense.” Id. Restitution “may be ordered for someone whose name did not appear in
the charging instrument,” but “the State must prove that the defendant’s commission of the offense
was the direct cause of the harm.” Id. at 89–90.
According to appellant, she was not convicted of any crime related to the sale of the
vehicle to Wilson. But one of the elements of the charged offense that the State was required to
4
The agreed order to modify restitution order was signed by the trial court a few months
after appellant had filed her brief in this appeal. The order expressly states that the “State and
defendant agree that this modification does not waive the Defendant’s 2nd point of error challenging
whether it was proper to have the Court order the Defendant to pay restitution to Nathan Wilson”
in this appeal.
18
prove was that appellant, intending to defraud or harm the vehicle’s owner, transferred the vehicle
to a third party. The evidence was undisputed that, after the vehicle’s title was transferred to Pete’s
Wrecker Service, it was transferred to Wilson. Prior to the conclusion of the sentencing phase of
the trial, Wilson was ordered to return the vehicle to Pinkston without compensation, and he testified
that he paid $16,000 in cash when he purchased the vehicle. His loss of the purchase price was a
“but for” and foreseeable result of appellant’s fraudulent transfer of the vehicle.
On this record, we conclude that Wilson suffered loss as a direct result of appellant’s
fraudulent transfer of the vehicle and, therefore, that the trial court did not abuse its discretion in
ordering restitution payable to Wilson. See id.; Drilling, 134 S.W.3d at 469. We overrule
appellant’s second point of error.
Amount of Restitution
In her third point of error, appellant argues that the trial court erred in ordering her
to pay restitution in the amount of $50,000. She argues that “if the Court of Appeals rules that
Nathan Wilson is entitled to any restitution from appellant (See Point of Error Two), that the amount
of restitution should be limited to $16,000, the amount that he paid for the car when he
purchased it from Pete’s Towing Service.” Although the trial court held a hearing on restitution in
September 2017 and ordered appellant to pay $50,000 to Wilson as a condition of community
supervision, the trial court subsequently signed an agreed order on May 22, 2018, reforming the
amount of restitution to the amount of $16,000 payable to Wilson.
Because the parties have agreed to the specific restitution amount, appellant’s third
point of error is moot. The trial court, however, signed the May 22, 2018, order after the appellate
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record had been filed in this Court during the pendency of this appeal and, thus, was without
authority to do so. See Tex. R. App. P. 25.2(g) (generally suspending further proceedings in trial
court during pendency of appeal “[o]nce the record has been filed in the appellate court”); Simon
v. State, 442 S.W.3d 581, 584–85 (Tex. App.—San Antonio 2014, no pet.) (holding that trial court
lacked jurisdiction to modify terms of community service during pendency of appeal); see, e.g.,
Lundgren v. State, 434 S.W.3d 594, 598 (Tex. Crim. App. 2014) (explaining that commencement of
community-service terms are stayed during pendency of appeal); Gonzales v. State, 353 S.W.3d 826,
830 n.4 (Tex. Crim. App. 2011) (explaining that generally “an order is void when the court that
entered it . . . lacked jurisdiction to enter the order”).
When the amount of restitution is not determined prior to an appeal, an appellate
court may remand the case for an evidentiary hearing to “reach an accurate restitution amount.” See
Burt v. State, 445 S.W.3d 752, 760–61 (Tex. Crim. App. 2014) (explaining procedure on appeal
when trial court makes restitution part of oral pronouncement of sentence but does not set amount).
Remand to the trial court to hold a restitution hearing, however, is unnecessary here because the
parties subsequently have agreed to the amount of restitution. See id. (explaining that “need to
remand could have been avoided” had parties themselves agreed to specific restitution amount). The
agreed order to modify was signed by both sides’ counsel as to substance and form, and it expressly
states: “Now comes The State of Texas by and through the District Attorney, and respectfully
would agree with the Defendant to modify the Restitution Order entered by the Court on
September 26, 2017 in the following respect: The amount of restitution is to be reformed to the
amount of $16,000.00 payable to Nathan Wilson.”
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This Court has authority to modify incorrect judgments when the necessary
information is available to do so. See Tex. R. App. P. 43.2(b); Bigley v. State, 865 S.W.2d 26, 27–28
(Tex. Crim. App. 1993). Given the parties’ agreement as to the specific restitution amount, we
modify the judgment to reflect that the amount of restitution is $16,000.
Conclusion
For these reasons, we modify the judgment of conviction as stated above and affirm
the judgment as modified.
__________________________________________
Melissa Goodwin, Justice
Before Justices Puryear, Goodwin, and Bourland
Modified and, as Modified, Affirmed
Filed: November 28, 2018
Do Not Publish
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