      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.

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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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