                                        NO. 12-16-00234-CR

                              IN THE COURT OF APPEALS

                 TWELFTH COURT OF APPEALS DISTRICT

                                           TYLER, TEXAS

RACHEL ELIZABETH MILNER,                                  §       APPEAL FROM THE 241ST
APPELLANT

V.                                                        §       JUDICIAL DISTRICT COURT

THE STATE OF TEXAS,
APPELLEE                                                  §       SMITH COUNTY, TEXAS

                                        MEMORANDUM OPINION
        Rachel Elizabeth Milner appeals her conviction for felony theft. In three issues, she
challenges the sufficiency of the evidence to support her conviction, the denial of her motion for
directed verdict, and the trial court’s restitution order. We affirm.

                                                 BACKGROUND
        Appellant was charged by indictment with theft of property from Sears, her employer,
valued at more than fifteen hundred dollars but less than twenty thousand dollars, a state jail
felony. Appellant waived her right to a jury trial, entered a plea of “not guilty,” and the case
proceeded to a bench trial.
        The State alleged that Appellant stole money, gas, groceries, and car rentals from Malory
Cox pursuant to a continuing scheme or course of conduct that began on or about January 31,
2013, and continued until on or about May 8, 2014.1 At the time of the offense, Appellant was
the automotive sales manager at the Sears store in Tyler, Texas.

        1
           Malory Cox, the individual the State alleged as the owner of the stolen property, is a manager at Sears in
charge of loss prevention for the Tyler, Longview, and Paris Sears stores. The penal code defines an “owner” as a
person who has title to the property, possession of the property, whether lawful or not, or a greater right to
possession of the property than the actor…” TEX. PENAL CODE ANN. § 1.07(a)(35)(A) (West Supp. 2016). “To
eliminate the distinctions between general and special owners, and to give ownership status to anyone with a rational
connection to the property, the legislature has given ‘owner’ an expansive meaning that anyone having a possessory
interest in the property through title, possession, whether lawful or not, or a greater right to possession of the
        Ian White, another Sears employee, notified Cox that Appellant had been continuously
driving numerous Enterprise rental vehicles for several weeks.                     Cox conducted an internal
investigation into the expenditures Appellant made with her two company issued credit cards.
Cox compiled documentation of Appellant’s expenditures, which Jeff Harris, a corporate
investigator, reviewed.        Cox interviewed Appellant, who admitted to making most of the
charges, but denied that they were unauthorized. Appellant was unable to provide Cox with any
receipts to document her claims. After the investigation, Sears determined the charges were
unauthorized, terminated Appellant, and filed theft charges. Harris’s accounting documented
$17,614.28 of illegitimate charges made by Appellant on her two company issued cards for
rental vehicles, gasoline, food, and groceries. Cox testified that these charges were unauthorized
by Sears and made without its consent. At the close of the State’s case, the defense moved for a
directed verdict of acquittal, which the trial court denied.
        Appellant testified on her own behalf and maintained that the purchases were authorized
and made for business purposes. She indicated that the rental vehicles were used by either her or
other Sears employees for company business only. She stated that the gas purchases related to
travel associated with business. Appellant further indicated that she made the food and grocery
purchases to cook meals for customers or Sears employees. She maintained that she had Sears’s
authority and consent to make these purchases. She further denied being terminated by Sears,
and testified that she resigned her position prior to meeting with Cox.
        The court found Appellant guilty and sentenced her to imprisonment for two years, but
suspended imposition of the sentence and placed Appellant on community supervision for a
period of five years. The court ordered Appellant to repay Sears $17,614.28 as a condition of her
community supervision. This appeal followed.


                                      SUFFICIENCY OF THE EVIDENCE
        In Appellant’s first issue, she argues that the evidence is insufficient to support her
conviction for theft. In her second issue, she argues that the trial court erred in denying her
motion for directed verdict.


property than the defendant, is an owner of the property.” Garza v. State, 344 S.W.3d 409, 413 (Tex. Crim. App.
2011). Thus, the State properly alleged an employee of a single entity as the owner of the property in this case. See
id.




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Standard of Review and Applicable Law
       A challenge to a trial court’s ruling on a motion for directed verdict is a challenge to the
sufficiency of the evidence to support a conviction, and is reviewed under the same standard.
Williams v. State, 937 S.W.2d 479, 482 (Tex. Crim. App. 1996); see also Rios v. State, 982
S.W.2d 558, 560 (Tex. App.—San Antonio 1998, pet ref’d).               The appellate standard for
reviewing the sufficiency of the evidence is based on a hypothetical rational fact finder; thus, in
bench trials and jury trials, we view the evidence in the light most favorable to the verdict in
order to determine whether any rational fact finder could have found the essential elements of the
offense beyond a reasonable doubt. Robinson v. State, 466 S.W.3d 166, 172 (Tex. Crim. App.
2015). A conviction must be rationally based on the evidence whether a judge or jury sits as the
fact finder in the case. See Id. In bench trials and jury trials, an appellate court must apply the
Jackson v. Virginia standard to determine if the evidence is sufficient to sustain the conviction.
See id. at 173; see also Brooks v. State, 323 S.W.3d 893, 902, 912 (Tex. Crim. App. 2010). This
standard requires the reviewing court to determine whether, considering all the evidence in the
light most favorable to the verdict, the fact finder was rationally justified in finding guilt beyond
a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789, 61 L. Ed.
2d 560 (1979); see also Brooks, 323 S.W.3d at 899.
       In order to consider the evidence in the light most favorable to the verdict, we must defer
to the fact finder’s credibility and weight determinations, because the fact finder is the sole judge
of the witnesses’ credibility and the weight to be given to their testimony. See Brooks, 323
S.W.3d at 899; see also Jackson, 443 U.S. at 319, 99 S. Ct. at 2789. This standard recognizes
“the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the
evidence, and to draw reasonable inferences from basic facts to ultimate facts.” Jackson, 443
U.S. at 319, 99 S. Ct. at 2789; see also Adames v. State, 353 S.W.3d 854, 860 (Tex. Crim. App.
2011). The fact finder is entitled to judge the credibility of the witnesses, and can choose to
believe all, some, or none of the testimony presented by the parties. Chambers v. State, 805
S.W.2d 459, 461 (Tex. Crim. App. 1991).         When conflicting evidence is presented, we must
resolve those conflicts in favor of the verdict and defer to the fact finder’s resolution. Jackson,
443 U.S. at 326, 99 S. Ct. at 2793. Wise v. State, 364 S.W.3d 900, 903 (Tex. Crim. App. 2012).
We may not substitute our own judgment for that of the fact finder. See id., 443 U.S. at 319, 99
S. Ct. at 2789; Thornton v. State, 425 S.W.3d 289, 303 (Tex. Crim. App. 2014); King v. State,



                                                 3
29 S.W.3d 556, 562 (Tex. Crim. App. 2000). Circumstantial evidence is as probative as direct
evidence in establishing the guilt of an actor and can be alone sufficient to establish guilt.
Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007).
       A person commits an offense if she unlawfully appropriates property with intent to
deprive the owner of the property. TEX. PENAL CODE ANN. § 31.03(a) (West Supp. 2016).
Appropriation of property is unlawful if committed without the owner’s effective consent. Id.
§ 31.03(b)(1) (West Supp. 2016).
Analysis
       Appellant contends that the evidence is insufficient to sustain her conviction. To support
her contention, Appellant argues that the State failed to call Harris, the corporate investigator
who determined that the charges Appellant made on the credit cards constituted theft. Appellant
further argues that Cox lacked knowledge regarding the “business practices” of the Sears
automotive department. Additionally, Appellant cites the delay in Sears’s investigation, noting
that the Tyler store manager received her credit card statements and reported no impropriety.
Finally, Appellant argues that the evidence did not establish that she acted with the intent to
deprive Sears of property, but merely showed she made routine business purchases.
       A review of the evidence shows that Cox testified that Appellant was not authorized to
make the purchases that were the subject of the indictment. Cox indicated that Sears gave
Appellant two credit cards in the course of her employment. One card, ending in 8096, was to be
used only for purchasing automotive parts needed to repair customer vehicles. The other card,
ending in 0193, was to be used sparingly for supplies only, such as printer paper. According to
Cox, all other business related expenses were to be submitted for reimbursement, not charged to
either credit card. Cox indicated that she interviewed Appellant, who insisted the expenditures
were all business related, but admitted sometimes using her card to buy gas. Appellant further
admitted to Cox that she might sometimes loan her card to other people. Cox testified that, when
given the opportunity, Appellant failed to provide any receipts to document her claims. Cox also
produced a chart, which was admitted into evidence without objection, compiled by Harris. This
chart identified the $17,614.28 worth of charges to Appellant’s cards, at Enterprise rental, gas
stations, restaurants, and grocery stores, that Harris considered theft.
       White testified that he noticed Appellant driving Enterprise rental vehicles, which were
filled with personal belongings, for long periods of time. He recalled seeing Appellant driving



                                                  4
three different Nissan vehicles, one that was dark blue, one that was beige, and one that was
either brown or possibly silver if dirty. He contacted Cox and reported this activity. Rental
receipts showed that Appellant rented a silver Nissan Altima on June 21, 2013, which was
returned on August 6, 2013, and a black Nissan Altima on August 6, 2013, which was returned
on September 16, 2013. White, however, indicated that normal employee use of a rental vehicle
does not exceed a day or two.
       The trial court, as sole judge of the credibility of the witnesses, was free to disbelieve
Appellant’s testimony that her purchases were authorized, and believe Cox’s contrary testimony.
See Chambers, 805 S.W.2d at 461; see also Wise, 364 S.W.3d at 903.                With regard to
Appellant’s intent, the trial court was free to draw reasonable inferences from the evidence
presented. Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; see also Adames, 353 S.W.3d at 860;
Christenson v. Texas, 240 S.W.3d 25, 32 (Tex. App.—Houston [1st Dist.] 2007, pet ref’d). In
doing so, the trial court could reasonably conclude that Appellant would have obtained a
personal benefit from having a subsidized rental vehicle to drive to and from work, free meals,
and free gasoline. See Christenson, 240 S.W.3d at 32 (in determining whether the defendant had
criminal intent to commit theft, we may consider whether the defendant experienced personal
gain from property obtained from the complainants).
       Viewing the evidence in light most favorable to the verdict, and deferring to the trial
court’s determinations regarding witness credibility, we conclude that a rational fact finder could
have found, beyond a reasonable doubt, that Appellant unlawfully appropriated property without
Cox’s effective consent and with intent to deprive Cox of the property. See TEX. PENAL CODE
ANN. § 31.03(a), (b)(1); see also Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; Brooks, 323
S.W.3d at 899. Because the evidence is sufficient to support Appellant’s conviction for theft, we
overrule Appellant’s issues one and two.


                                           RESTITUTION
       In Appellant’s third issue, she argues that the evidence is insufficient to support the trial
court’s order of restitution in the amount of $17,614.28 to Sears.
Standard of Review
       Texas law authorizes a sentencing court to order payment of restitution to the victim for
losses sustained as a result of the convicted offense. TEX. CODE CRIM. PROC. ANN. art. 42.037(a)



                                                 5
(West Supp. 2016). Due process requires a factual basis in the record for the amount of
restitution ordered. Martin v. State, 874 S.W.2d 674, 676 (Tex. Crim. App. 1994); see also
Cartwright v. State, 605 S.W.2d 287, 289 (Tex. Crim. App. [Panel Op.] 1980).                               Further,
restitution is required to be “just,” that is, supported by sufficient factual evidence in the record
that the expense was incurred. Thompson v. State, 557 S.W.2d 521, 525-26 (Tex. Crim. App.
1977).
         Challenges to the sufficiency of the evidence supporting a restitution order can be raised
for the first time on appeal. Idowu v. State, 73 S.W.3d 918, 921-922 (Tex. Crim. App. 2002).
Challenges to the appropriateness of restitution, however, must be objected to in the trial court.
Id. Moreover, imposition of a sentence is different from the granting of community supervision,
and concepts of error preservation that apply in non-community supervision cases do not
necessarily carry over to community supervision cases.                   Gutierrez-Rodriguez v. State, 444
S.W.3d 21, 23 (Tex. Crim. App. 2014). This is because community supervision involves a type
of contractual relationship that does not exist in non-community supervision cases.                              Id.
Conditions of probation that are not objected to are affirmatively accepted as terms of the
contract, unless the condition is one that the criminal justice system finds to be intolerable and,
therefore, is not a contractual option to the parties. Id.
Analysis
         In this case, the State argues that Appellant failed to preserve her challenge to the trial
court’s restitution order because she received community supervision and lodged no objection in
the trial court to the restitution order. We agree.
         During her sentencing hearing, the court announced that it would be ordering restitution
in the amount of $17,614.28 to Sears as a condition of Appellant’s community supervision.
Appellant did not object to this condition. We conclude, therefore, that Appellant has not
preserved error to now complain about the trial court’s restitution order on appeal. 2 See id. (in a
community supervision case, the court was not required to determine whether appellant’s
complaint related to the appropriateness of restitution or to its factual basis because, by failing to


          2
            Even had Appellant preserved error, the record contains a factual basis for the trial court’s restitution
order. See Martin, 874 S.W.3d at 676; see also Cartwright, 605 S.W.2d at 289. Appellant argues that the only
evidence was a letter in the pre-sentence investigation report. However, the evidence offered during trial supported
the restitution order, as Cox testified that $17,614.28 worth of unauthorized charges were made by Appellant on the
two credit cards. See Martin, 874 S.W.3d at 676; see also Cartwright, 605 S.W.2d at 289.


                                                         6
object to the restitution, appellant affirmatively accepted the terms of the contract.) Appellant’s
third issue is overruled.


                                                   DISPOSITION
         Having overruled Appellant’s issues one, two, and three, we affirm the judgment of the
trial court.

                                                                 GREG NEELEY
                                                                    Justice


Opinion delivered July 31, 2017.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.




                                             (DO NOT PUBLISH)


                                                          7
                                   COURT OF APPEALS

      TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

                                           JUDGMENT

                                             JULY 31, 2017


                                         NO. 12-16-00234-CR


                                RACHEL ELIZABETH MILNER,
                                         Appellant
                                            V.
                                   THE STATE OF TEXAS,
                                         Appellee


                                 Appeal from the 241st District Court
                         of Smith County, Texas (Tr.Ct.No. 241-1530-14)

                        THIS CAUSE came to be heard on the appellate record and briefs filed
herein, and the same being considered, it is the opinion of this court that there was no error in the
judgment.
                        It is therefore ORDERED, ADJUDGED and DECREED that the judgment
of the court below be in all things affirmed, and that this decision be certified to the court
below for observance.
                    Greg Neeley, Justice.
                    Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
