                                     In The
                                Court of Appeals
                       Seventh District of Texas at Amarillo
                                ________________________

                           Nos. 07-11-00419-CR and 07-11-00420-CR
                               ________________________

                      DAISY GUTIERREZ-RODRIGUEZ, APPELLANT

                                                 V.

                             THE STATE OF TEXAS, APPELLEE



                        On Appeal from the County Court at Law No. 2
                                     Brazos County, Texas
               Trial Court Nos. 11-00232-CRM-CCL2 and 11-00234-CRM-CCL2
                               Honorable P. K. Reiter, Presiding


                                         June 27, 2013

                                           OPINION
                    Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.


       Appellant, Daisy Gutierrez-Rodriguez, was convicted of theft, 1 a Class B

misdemeanor, in two cases following a consolidated jury trial and was sentenced to 180

days confinement and a $200 fine in each case.                    The trial court suspended the

imposition of both sentences and placed Appellant on community supervision for a term

1
See TEX. PENAL CODE ANN. § 31.03(a), (e)(2) (W EST SUPP. 2012).
of one year, subject to certain conditions. In two points of error, Appellant asserts (1)

the evidence is legally and factually insufficient to establish theft and (2) the trial court

erred by requiring Appellant to pay restitution on stolen items for which she was not

charged or convicted. We modify the conditions of community supervision attached to

each judgment to delete the requirement that Appellant pay combined restitution of

$1215, and affirm each judgment as modified.


                                       Background


CAUSE NO. 11-00232-CRM-CCL2


       In Cause No. 11-00232-CRM-CCL2, an information was filed alleging Appellant,

on or about December 13, 2010, unlawfully appropriated, by acquiring or otherwise

exercising control over, property, to-wit: “one Gormin (sic) GPS, serial no. 1C9174760,”

of the value of $50 or more but less than $500, from the owner, Ronald Blair, without his

effective consent and with intent to deprive him of the property.


       At trial, Officer Tristen Lopez of the College Station Police Department testified

that on December 13, 2010, he and other officers were taking burglary reports in the

Pebble Creek residential area, where more than twenty complaints had been received.

In one of those burglary reports, Blair indicated that, at around 7:30 a.m. that morning,

he noticed items missing from his pickup. He identified those items and their estimated

value as follows: black phoenix flashlight ($100), two Kershaw knives ($200), a bag

containing $5 change, XM satellite receiver ($150), and a black Garmin NUVI GPS unit

($300). Blair further indicated he had previously programmed “3500 Farah” as his home

address in the GPS device.

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      At trial, Blair testified that, on December 13, he discovered the dashboard in his

pickup had been torn apart. In addition to the items listed in Officer Lopez’s report, he

testified a ZUNE radio and camera were also missing. The police recovered a matching

GPS device from a pawnshop and returned it to him. Blair was confident the item

belonged to him because “3500 Farah” was entered as its home address and he also

recognized other addresses he had entered.            He estimated the device had a

replacement value of $200 and that it would cost more than $50 to purchase a new one.

He testified the police also returned his XM receiver, and a bag containing $5 change

but he was still missing the knives, flashlight and ZUNE radio which he estimated had a

value of $415.


      Elana Kozak testified she was working at a pawnshop on December 15, 2010,

when Appellant sold her a black Garmin NUVI GPS device, serial number 1C9174760,

for $30. A pawn ticket for the item indicated that it was bought from Appellant. Kozak

testified Appellant identified herself with her driver’s license and affirmed that the item

was not stolen and she was free to sell it. She estimated the pawnshop would have

sold the GPS device for $69 to $79 if it hadn’t been confiscated by the police as stolen

property.


CAUSE NO. 11-00234-CRM-CCL2


      In Cause No. 11-00234-CRM-CCL2, an information was filed alleging Appellant,

on or about December 15, 2010, unlawfully appropriated, by acquiring or otherwise

exercising control over, property, to-wit: one iPod, serial no. YM9379NV71Y, of the




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value of $50 or more but less than $500, from the owner, Daniel McCoy, without his

effective consent and with intent to deprive him of the property.


       At trial, McCoy testified that, on December 15, 2010, someone broke into his

pickup and stole an iPod, iPhone, and GPS device. 2 A blue faceplate for his radio was

also missing. The police recovered a matching iPod from a pawnshop and returned it to

him.   McCoy was confident that the item recovered by the police belonged to him

because, in addition to being the same model, type and color, it had originally belonged

to his roommate and his roommate’s name was on the iPod’s display screen. The iPod

also contained music McCoy attributed to himself. For the items he did not recover, he

estimated values of $250 for the faceplate, $300 for the iPhone, and $250 for the GPS

device. He also testified the police report erroneously described his iPod as blue when

it was actually black to dark grey. He described the radio faceplate as being blue.


       Officer Mikel Stephens of the City of College Station Police Department

responded to McCoy’s complaint. He testified that, after examining the pickup, he made

a burglary report listing the four items that had been taken. He testified that even

though he did not see the iPod, he listed it as blue. According to his testimony, it was

not uncommon for there to be some discrepancy in a stolen property description. He

indicated there were no other burglaries in the area.


       Chad Perez testified he was working at a pawnshop on December 14, 2010,

when Appellant sold him a silver iPod, serial number YM9379NV71Y, for $60.

Contemporaneous with the sale, he filled out a store receipt indicating Appellant was

2
 He also testified his iPod may have been taken prior to December 15 because he was using his iPhone
as a substitute and may not have noticed it missing until the other items were stolen.

                                                 4
the seller. The store receipt also included information from Appellant’s driver’s license.

Perez testified that, by signing the receipt, Appellant represented she was the owner of

the iPod and had the right to sell it. He estimated the pawnshop would have resold the

iPod for $79.99 if it had not been confiscated by the police as stolen property.


       Detective Travis Lacox testified he investigated a group of burglaries that

occurred in December 2010 in the Pebble Creek residential area. The initial complaint

was from a homeowner who heard his dog barking at approximately 6:30 a.m. and went

outside to discover a small black car fitted with a rear spoiler parked in his driveway.

When its driver spied him and sped away, a number of items in plastic bags were left on

his lawn. Some of the items belonged to the homeowner, while other items belonged to

his neighbors.


       On December 16, 2010, Detective Lacox learned that Appellant’s boyfriend,

Jamie Rodriguez, had pawned a GPS device taken from the Pebble Creek area. He

also learned Rodriguez had access to Appellant’s black Milan, which was fitted with a

rear spoiler.    After locating Rodriguez, a high speed chase ensued that ultimately

resulted in Rodriguez wrecking the Milan and escaping on foot. When the vehicle was

inventoried, the trunk contained iPods, GPS devices, knives, tools, compact discs,

device accessories, and a bag containing $5 change. Many of the items were identified

as having been taken in the Pebble Creek area burglaries.


       Due to Rodriguez’s relationship with Appellant and the fact that stolen property

had been found in the trunk of her car, Detective Lacox seized any items pawned by

Rodriguez or Appellant in the past year.         Those efforts resulted in the recovery of


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Blair’s GPS device, which he identified by the addresses in the device, and McCoy’s

iPod, which contained music described by McCoy and the display showing his

roommate’s name.


      Detective Lacox subsequently contacted Appellant and she willingly came to the

police station.     He testified she indicated her boyfriend bought the items from

unidentified persons at their apartment complex and she pawned them because

Rodriguez did not have an ID. In the taped interview, Appellant ultimately admitted she

was aware some of the items were stolen but didn’t think she would get in any trouble.

Detective Lacox also testified there was no way of knowing if Appellant participated in,

or knew anything about, the Pebble Creek burglaries.


      At trial, Appellant testified that Rodriguez had come home on various occasions

with items that she would pawn for him because he didn’t have an ID. She indicated

that, at the time McCoy’s iPod and Blair’s GPS device were pawned, she wasn’t aware

they were stolen, but instead assumed Rodriguez had purchased them. She testified

that her videotaped statement to Detective Lacox “came out wrong.”            She also

explained that, prior to her interview, she figured the items were stolen because

Detective Lacox wanted to speak with her about the items she had pawned.


      At the conclusion of the evidence, the jury found Appellant guilty as charged in

each information.     Appellant chose to have the trial court assess punishment and,

without hearing additional evidence, the trial court originally assessed her sentence in

each case at confinement in the Brazos County Jail for six months, probated, and a fine

of $500, not probated. A discussion concerning restitution ensued, after which the trial


                                           6
court reduced the fine to $200 in each case, probated, and added a condition that

Appellant pay restitution to Blair in the amount of $450, and McCoy in the amount of

$800. The next day, the trial court signed its Judgment and Sentence in each case,

incorporating conditions of community supervision which included a requirement that

Appellant pay combined restitution of $1215 ($415 in Cause No. 11-00232-CRM-CCL2

and $800 in Cause No. 11-00234-CRM-CCL2). This appeal followed.


                                      Discussion


       Appellant asserts the evidence was legally insufficient to prove theft because the

State failed to establish that (1) the iPod stolen from McCoy’s pickup was the same iPod

pawned by her, (2) the value of Blair’s GPS met the requisite amount for a Class B

misdemeanor theft, and (3) she knew the GPS and iPod were stolen when she pawned

them. She also contends there was no factual basis for ordering that she pay restitution

as part of her community supervision in either case.


       A person commits the offense of theft if he or she unlawfully appropriates

property with the intent to deprive the owner of that property. See Tex. Penal Code

Ann. § 31.03(a) (West Supp. 2012). Appropriation of property is unlawful if it is done

without the owner’s consent, or the property is stolen and the actor appropriates the

property knowing it was stolen by another. Id. at § 31.03(b)(1)-(2). The offense is a

Class B misdemeanor if the value of the stolen property is $50 or more but less than

$500. Id. at § 31.03(e)(2)(A)(i).




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II. SUFFICIENCY OF THE EVIDENCE


        In determining whether the evidence is legally sufficient to support a conviction, a

reviewing court must consider all the evidence in a light most favorable to the verdict

and determine, based on that evidence and the reasonable inferences drawn therefrom,

whether a rational fact-finder could have found the essential elements of the crime

beyond a reasonable doubt. Lucio v. State, 351 S.W.3d 878, 894 (Tex.Crim.App. 2011)

(citing Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S.Ct. 2781, 61 L.Ed.2d 560

(1979)); Brooks v. State, 323 S.W.3d 893, 895 (Tex.Crim.App. 2010). In conducting our

review, we do not sit as a thirteenth juror and may not substitute our judgment for that of

the fact-finder by re-evaluating the weight and credibility of the evidence. Isassi v.

State, 330 S.W.3d 633, 638 (Tex.Crim.App. 2010). Rather, we defer to the fact-finder to

fairly resolve conflicts in testimony, weigh the evidence, and draw reasonable

inferences from basic to ultimate facts. Id.


        Appellant asserts she could not have pawned McCoy’s iPod because the

pawnshop receipt shows it was pawned on December 14, whereas McCoy reported it

as being stolen on December 15.          She also asserts the State’s witnesses were

inconsistent in their description of the iPod’s color, i.e., McCoy described the iPod as

black or dark grey, Perez described it as silver, and Officer Stephens described it as

blue.


        At most, the pawnshop receipt and the conflicting evidence on the iPod’s color

raised a fact issue at trial to be decided by the jury, i.e., whether the iPod pawned by

Appellant was McCoy’s stolen iPod. Perez testified Appellant sold the iPod to the pawn


                                               8
shop and it was subsequently confiscated by the police as stolen property. When the

police returned his iPod, McCoy testified he was confident the iPod belonged to him

because it contained music attributable to him and it was the same model, type, and

color. He also testified the iPod originally belonged to his roommate “Garrett” and the

display screen on the iPod recovered by the police showed “Garrett.” Although the

pawnshop ticket for the iPod was dated the day before McCoy reported the burglary,

McCoy testified his iPod could have been gone longer because he was substituting his

iPhone for his iPod and he may not have missed it until he discovered the burglary on

December 15. Considering the evidence in a light most favorable to the verdict, we find

a rational fact-finder could have found that the iPod pawned by Appellant was McCoy’s

stolen iPod. We will not substitute our judgment for that of the jury. See Isassi, 330

S.W.3d at 638.


       Appellant also asserts the State failed to establish the value of Blair’s GPS

device as being more than $50. Although the pawnshop paid Appellant $30 for Blair’s

GPS, Blair testified its replacement value was $200 and it would cost more than $50 to

purchase a new one. Value for the purposes of the theft statute is the fair market value

of the property at the time and place of the offense, or if the fair market value cannot be

ascertained, the cost of replacing the property within a reasonable time after the theft.

TEX. PENAL CODE ANN. § 31.08(a) (W EST 2011). In addition, an owner is competent to

testify to the value of property, even though he is not qualified as an expert on value;

Morales v. State, 2 S.W.3d 487, 489 (Tex.App.—Texarkana 1999, pet. ref’d) (citing

Sullivan v. State, 701 S.W.2d 905, 909 (Tex.Crim.App. 1986)), and “[s]uch testimony is

sufficient evidence for the trier of fact to determine value, based on the witness’


                                            9
credibility.” Id. Again, we will not substitute our judgment for that of the jury and,

accordingly, we find the State’s evidence was sufficient to establish the requisite

amount for a Class B misdemeanor conviction.


       As to whether Appellant knew the property was stolen when she pawned it, that

too was a fact issue to be decided by the jury at trial. Appellant testified she didn’t know

the iPod or GPS were stolen but, in a prior statement, said she did. Further, whether

Detective Lacox misunderstood her statement on the videotape or Appellant correctly

explained the import of her statement was a matter for the jury to decide after hearing

all the testimony and watching the videotape in court. In closing argument, Appellant’s

attorney primarily argued that she did not know the items were stolen and her

explanation of the videotaped statement was the correct one. Judging from the verdict,

the jury rejected her explanation and found Detective Lacox’s testimony to be more

credible. Appellant’s first point of error is overruled.


       II. RESTITUTION


       In addition to any fine authorized by law, a sentencing court may order the

defendant to make restitution to any victim of the offense. See TEX. CODE CRIM. PROC.

ANN. art. 42.037(a) (WEST SUPP. 2012). As punishment, restitution attempts to redress

wrongs for which a defendant has been charged and convicted in court. Cabla v. State,

6 S.W.3d 543, 546 (Tex.Crim.App. 1999), cert. denied, 529 U.S. 1092, 120 S.Ct. 1730,

146 L.Ed.2d 650 (2000). See Martin v. State, 874 S.W.2d 674, 679-80 (Tex.Crim.App.

1994) (“Notions of ‘justice and fairness’ dictate that a defendant be punished only for the

crime of which he [or she] was convicted.”) An appellate court reviews challenges to


                                              10
restitution orders under an abuse of discretion standard; see Cartwright v. State, 605

S.W.2d 287, 289 (Tex.Crim.App. 1980); Drilling v. State, 134 S.W.3d 468, 469

(Tex.App.—Waco 2004, no pet.), and abuses its discretion when it acts without

reference to any guiding rules or principles or acts arbitrarily or unreasonably, or when

its decision is so clearly wrong that it lies outside the zone of reasonable disagreement.

Montgomery v. State, 810 S.W.2d 372, 380 (Tex.Crim.App. 1991) (op. on reh’g).


        An abuse of discretion in setting restitution usually implicates due process

considerations. See Campbell v. State, 5 S.W.3d 693, 697 (Tex.Crim.App. 1999) (“A

trial court may not order restitution for an offense for which the defendant is not

criminally responsible.”); Gordan v. State, 707 S.W.2d 626, 629-30 (Tex.Crim.App.

1986) (holding that it would be a denial of due process to order the defendant to pay for

costs associated with a crime for which he was found not criminally responsible). Due

process places three limitations on the restitution a trial court may order: (1) the amount

must be just and supported by a factual basis within the record; (2) the restitution

ordered must be only for the offense for which the defendant is criminally responsible;

and (3) the restitution must be only for the victim or victims of the offense for which the

defendant is charged. See Campbell, 5 S.W.3d at 696-97; Drilling, 134 S.W.3d at 470.


        The “Conditions of Community Supervision” attached to each Judgment requires

Appellant to make restitution for items stolen from Blair’s and McCoy’s pickups that

were not recovered by the police, i.e., Blair’s two knives, flashlight and ZUNE radio

collectively valued at $415 in Cause No. 11-00232-CRM-CCL2 and McCoy’s radio

faceplate, iPhone, and GPS collectively valued at $800 in Cause No. 11-00234-CRM-

CCL2.     The Information filed in each action, however, charges Appellant with theft of

                                            11
either a GPS device or an iPod and no other items. The evidence at trial proved

Appellant only pawned the GPS device and iPod knowing they were stolen.                                 The

evidence did not establish that Appellant was guilty of either burglary. Both items were

returned to their owners. There was no charge to the jury on the law of parties or the

offense of burglary of a vehicle; see Goff v. State, 931 S.W.2d 537, 544 (Tex.Crim.App.

1996) (holding “[w]here there is no charge on the law of parties a defendant may only

be convicted on the basis of his [or her] own conduct”), cert. denied, 520 U.S. 1171, 117

S.Ct. 1438, 137 L.Ed.2d 545 (1997), and Detective Lacox testified there was no way of

knowing if Appellant participated in the actual burglaries or knew anything about them.


        Based upon this record, we find the trial court abused its discretion by ordering

restitution based on offenses for which Appellant was not found criminally responsible

and the trial court’s orders lacked any factual basis in the record. See Gordon, 707

S.W.2d at 629 (“when the defendant’s criminal culpability for a third party’s losses has

not been adjudicated it would be unfair to order the defendant to pay those losses”).

See also Garcia v. State, 773 S.W.2d 694, 697 (Tex.App.—Corpus Christi 1989, no

pet.) (trial court lacked authority to order restitution to victims of offenses for which

appellant had not been adjudicated guilty). 3 Accordingly, we modify the Judgments in

each case to delete the requirement that Appellant pay restitution. See Ex parte Pena,

739 S.W.2d 50, 51 (Tex.Crim.App. 1987) (where trial judge imposes an invalid

condition, “the proper remedy is to reform the judgment of conviction by deleting the

3
 The State asserts Appellant waived any challenge to the trial court’s restitution order, however, as stated
above, due process considerations require that the amount of restitution be supported by a factual basis
within the record. In that context, a defendant may raise factual insufficiency for the first time on appeal.
See Mayer v. State, 309 S.W.3d 552, 555-56 (Tex.Crim.App. 2010). See also Idowu v. State, 73 S.W.3d
918, 921-22 (Tex.Crim.App. 2002).


                                                     12
condition”). See also Reasor v. State, 281 S.W.3d 129, 135 (Tex.App.—San Antonio

2008, pet. ref’d) (community supervision order modified to delete portion of judgment

imposing restitution). Appellant’s second point of error is sustained.


                                       CONCLUSION


       We modify the “Conditions of Community Supervision” attached to the

Judgments in Cause Nos. 11-00232-CRM-CCL2 and 11-00234-CRM-CCL2 to delete

the requirement that Appellant pay $415 and $800 in restitution respectively and affirm

the Judgments as modified.


                                                 Patrick A. Pirtle
                                                     Justice

Publish.




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