Affirmed as Modified and Opinion Filed October 6, 2016




                                          S
                                Court of Appeals
                                                 In The


                         Fifth District of Texas at Dallas
                                       No. 05-16-00041-CR

                             SELVIN NELSON LOPEZ, Appellant
                                          V.
                              THE STATE OF TEXAS, Appellee

                      On Appeal from the Criminal District Court No. 3
                                   Dallas County, Texas
                            Trial Court Cause No. F-0519061-J

                              MEMORANDUM OPINION
                        Before Justices Bridges, Lang-Miers, and Whitehill
                                    Opinion by Justice Bridges
       Appellant Selvin Nelson Lopez pleaded guilty to theft with an aggregate value of $20,000

or more but less than $100,000. The trial court set punishment at ten years’ confinement and

ordered restitution in the amount of $71,767.96. In two issues, appellant argues the trial court

erred by ordering restitution because the order amounts to an impermissible double recovery, and

the evidence is insufficient to support the ordered amount. In a third issue, appellant argues the

judgment should be reformed to reflect that there was no plea bargain agreement. As modified,

the judgment of the trial court is affirmed.

                                               Background

       Mark Wolfe, the owner and broker of record for Re/Max DFW Associate Realtors,

testified appellant started working for the company as a bookkeeper on May 20, 2004. His

position provided him with access to certain bank accounts and the ability to write and deposit
checks. Specifically, appellant handled all the checks that came in from agents for office

expenses and, in turn, he paid all the company’s bills.

       Wolfe was pleased with appellant’s work, but he became suspicious in October of 2004.

During that time, appellant told Wolfe his mother was very sick and appellant needed $2700 for

medical bills. Appellant admitted to taking money from the mortgage company account, but he

said he repaid it. Wolfe told appellant the company had a separate account if staff needed to

borrow funds, but the mortgage company account was off limits. Wolfe later learned appellant

did not personally repay the mortgage company account, but instead had taken $2700 from the

Re/Max general account and then repaid the mortgage company account.

       Wolfe’s outside CPA began looking into the Re/Max books, and in February 2005, she

found an irregularity. The books indicated appellant issued checks to vendors but before the

check was printed, he changed the name on the check to himself.              After learning this

information, Wolfe immediately called the bank and put a “search and watch” on the accounts so

appellant could no longer sign on them. Later that day, appellant discovered he was on a “search

and watch” and called the bank. An employee told appellant Wolfe had authorized the “watch.”

Wolfe testified appellant immediately packed up his office and disappeared. Wolfe talked to

appellant briefly the following day, and appellant said his father was sick and he needed to go to

Honduras.

       As part of the investigation into the stolen funds, Re/Max created a summary of amounts

taken from the company. The summary included the “thefts from general accounts,” “thefts in

DFW Texas Mortgage,” “thefts by secret deposit of Re/Max funds into Coppell Commission

Account and the writing of offsetting check to Lopez for same amount, “ and “thefts by endorsed

check.” The summary indicated appellant wrote checks to himself from July 6, 2004 until

February 9, 2005. The total amount taken equaled $71,767.96.

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       Wolfe testified that in the approximate ten years since appellant stole the money, he had

not repaid any of it despite evidence showing he made $100,000 in his current job. Further,

Re/Max sued appellant and won a civil judgment, but appellant had not paid on the judgment.

Wolfe testified he did not expect to receive anything now.

       Appellant testified and explained he pleaded guilty to the offense because he was guilty

of stealing money from Re/Max. He also admitted a case was pending against him in California

in which Ace Hardware alleged he embezzled over $300,000. He apologized for his actions and

asked the court for probation. The court sentenced appellant to ten years’ confinement and

ordered restitution in the amount of $71,767.96. This appeal followed.

                                           Discussion

       In his first two issues, appellant argues the trial court erred by ordering restitution

because the order amounts to an impermissible double recovery, and the evidence is insufficient

to support the ordered amount. The State responds the order is not an impermissible double

recovery because Re/Max has never received any payment on the civil judgment. Further, the

State argues Wolfe’s testimony and the summary admitted as Exhibit 2 is sufficient to support

the court’s order.

       We begin our analysis by determining whether appellant has preserved his issue for

review. To preserve error regarding the appropriateness of a restitution order, a defendant must

make a specific and timely objection. TEX. R. APP. P. 33.1(a)(1)(A); Idowu v. State, 73 S.W.3d

918, 923 (Tex. Crim. App. 2002) (stating that if defendant wishes to complain about

appropriateness of trial court’s restitution order, he must do so in trial court or its waived);

Calder v. State, No. 05-10-00092-CR, 2011 WL 1994220, at *7 (Tex. App.—Dallas May 24,

2011, pet. ref’d) (not designated for publication) (defendant waived article 42.037(f)(1)

complaint by failing to object to trial court). There is no evidence in the record reflecting that


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appellant objected to the restitution order because it resulted in an impermissible double

recovery. Accordingly, appellant has not preserved his first issue for review.

       However, no objection is necessary to preserve a challenge to the sufficiency of the

evidence supporting a restitution order and such complaints may be raised for the first time on

appeal. Mayer v. State, 309 S.W.3d 552, 555 (Tex. Crim. App. 2010). Thus, we will address

appellant’s second argument in which he claims the evidence is insufficient to support the

ordered amount of $71,767.96.

       “Restitution is not only a form of punishment, it is also a crime victim’s statutory right.”

Hanna v. State, 426 S.W.3d 87, 91 (Tex. Crim. App. 2014). Article 42.037 authorizes trial

courts to order a defendant to pay restitution to compensate a victim, upon considering the value

of any property lost and other factors the court “deems appropriate.” TEX. CODE CRIM. PROC.

ANN. art. 42.037(a), (b)(1)(B)(i), (c)(2) (West 2006). We review restitution orders for an abuse

of discretion. Cartwright v. State, 605 S.W.2d 287, 289 (Tex. Crim. App. [Panel Op.] 1980). A

trial court abuses its discretion if the restitution is (1) not supported by the record, (2) ordered for

an offense for which the defendant is not criminally responsible, or (3) not for victims of the

offense for which the defendant is charged. Agbeze v. State, No. 01-13-00140-CR, 2014 WL

3738048, at *8 (Tex. App.—Houston [1st Dist.] July 25, 2014, pet. ref’d) (mem. op., not

designated for publication).

       The State bears the burden of proving, by a preponderance of the evidence, “the amount

of the loss sustained by a victim as a result of the offense.” TEX. CODE CRIM. PROC. ANN. art.

42.037(k) (West 2006). The court resolves any dispute relating to the proper amount or type of

restitution. Id. The amount of restitution, however, must be just and have “a factual basis within

the loss of the victim.” Campbell v. State, 5 S.W.3d 693, 696 (Tex. Crim. App. 1999). Because

due process concerns are implicated, this means “there must be evidence in the record to show

                                                 –4–
that the amount set by the court has a factual basis.” Cartwright, 605 S.W.2d at 289. We review

the record to determine if there was any evidence of an amount that would tend to “make good”

the injured party. Davis v. State, 757 S.W.2d 386, 389 (Tex. App.—Dallas 1988, no pet.).

       Appellant argues the evidence is insufficient to support the restitution order because

Wolfe “testified generally” that appellant took $71,767. Appellant further argues Exhibit 2, the

“theft summary,” merely reflects Re/Max’s opinions and interpretation of account activity and

the State failed to substantiate any of the information within the exhibit.

       Wolfe testified that “after all the investigation,” the amount stolen was $71.767. The

testimony of a witness with personal knowledge about the amount of damages incurred is

adequate to support a restitution order. See Bailey v. State, No. 05-09-00959-CR, 2011 WL

1237662, at *6 (Tex. App.—Dallas Apr. 1, 2011, pet. ref’d) (mem. op., not designated for

publication); Todd v. State, 911 S.W.2d 807, 811 (Tex. App.—El Paso 1995, no pet.). Appellant

had the opportunity to cross-examine Wolfe about the accuracy of this amount but failed to do

so. See Green v. State, 880 S.W.2d 797, 802 (Tex. App.—Houston [1st Dist.] 1994, no pet.)

(concluding witness testimony was “some evidence” supporting restitution order and defendant

had opportunity to cross-examine her about the total theft loss but did not do so).

       Further, the State introduced Exhibit 2 without objection. If appellant believed the

document needed further substantiation, it was incumbent upon him to raise an objection to the

trial court. This he failed to do. TEX. R. APP. P. 33.1.

       Finally, appellant admitted his guilt. During appellant’s testimony, the State asked, “And

you took $70,000 from Mr. Wolfe in ten months?” and appellant answered, “Yes.”

       Accordingly, the State presented sufficient evidence to support the amount of restitution

ordered by the trial court. We overrule appellant’s second issue.




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       In his final issue, appellant argues the judgment should be modified to reflect that there

was no plea bargain agreement in this case. The State agrees.

       When the record contains the necessary information to do so, an appellate court has the

authority to modify an incorrect judgment. TEX. R. APP. P. 43.2 (b). The judgment currently

states, “Terms of Plea Bargain” are “10 YEARS TDJC; NO FINE.” At the beginning of the plea

hearing, the court acknowledged “that you, the State, and your attorney have not been able to

come to a plea bargain agreement.” Appellant agreed and then affirmed that he was pleading

guilty to the charge and asking the court to assess punishment. Because the record indicates the

State and appellant did not agree to a plea bargain, we sustain appellant’s third issue, modify the

judgment, and delete the words, “Terms of Plea Bargain” are “10 YEARS TDJC; NO FINE.”

                                           Conclusion

       As modified, the judgment of the trial court is affirmed.




                                                     /David L. Bridges/
                                                     DAVID L. BRIDGES
                                                     JUSTICE

Do Not Publish
TEX. R. APP. P. 47
160041F.U05




                                               –6–
                                        S
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                      JUDGMENT

SELVIN NELSON LOPEZ, Appellant                      On Appeal from the Criminal District Court
                                                    No. 3, Dallas County, Texas
No. 05-16-00041-CR         V.                       Trial Court Cause No. F-0519061-J.
                                                    Opinion delivered by Justice Bridges.
THE STATE OF TEXAS, Appellee                        Justices Lang-Miers and Whitehill
                                                    participating.

        Based on the Court’s opinion of this date, the judgment of the trial court is MODIFIED
as follows:

       We DELETE the words “Terms of Plea Bargain: 10 YEARS TDCJ; NO FINE.”

As MODIFIED, the judgment is AFFIRMED.


Judgment entered October 6, 2016.




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