## In The **Court of Appeals Seventh District of Texas at Amarillo** 

________________________ No s . 07
- 11 - 0 0 419
- CR and 07
- 11 - 0 0 420
- CR

________________________ DAISY GUTIERREZ
- RODRIGUEZ , APPELLANT V. THE STATE OF TEXAS , APPELLEE
On Appeal from the County Court at Law No. 2 Brazos County, Texas Tri a l Court No s . 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 T EX
. P ENAL C ODE A NN . § 31.03(a), (e)(2) ( W EST S UPP . 2012).2 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 Appell ant 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 judg ment as modified. Background
C AUSE N O
. 11
- 00232
- CRM
- CCL2
In Cause No. 11
- 00232
- CRM
- CCL2, an i nformation 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 $5 00 , 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 taki ng 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 identifi ed those items and their estimated value as follows: b lack 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 p rogrammed “3500 Farah” as his home address in the GPS device

.3 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 nu mber 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.
C AUSE N O
. 11
- 00234
- CRM
- CCL2
In Cause No. 11
- 00234
- CRM
- CCL2, an i nformation was filed alleging Appellant, on or about December 15, 20 10, unlawfully appropriated, by acquiring or otherwise exercising contr ol over, property, to
- wit: one i P od , serial no. YM9379NV71Y , of the4 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, M cCoy 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 wa s also missing. The police recove red a matching iPod from a pawn shop and returned it to him. McCoy was confident that the item recovered by t he police belonged to him because, in addition to being the same model, type and color, it had o riginally belonged to his roommate and his roommate’s name was on the iPod’s d isplay screen. The iPod also contained music McCoy attributed to himself. For the items he did not recover, he estimated value s 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 c omplaint

. 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 b urglaries in the area.
Chad Perez tes tified he was working at a pawn shop on December 14, 2010 , when Appellant sold him a silver iPod , serial number YM9379NV71Y , for $60. Contemporaneous with th e 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.5 the seller . The store receipt also included i nformation 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 pawn shop would have resold the iPod for $79.99 if it ha d not been confiscated by the police as stolen property. Detective Travis Lacox testified he investigated a group of burglar ies that occurred in December 2010 in the Pebble Creek residential area . The initial complaint was from a home owner 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 pa rked 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 tha t 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 , de vice 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 relation ship 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 of6 Blair’s GPS device, which he identified by the addresses in the device , and McCoy’s i Pod , which contained music described by McCoy and the display show ing his
r oommate’s name

. Detective Lacox subsequently contacted Appellant and she willingly came to the police station. He testified s he indicated her boyfriend bought the items from unidentified persons at their apartment complex and she pawned them be cause Ro driguez 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 M cCoy’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, p rior to her in terview, she figured the items were stolen because Detective Lacox wan ted to speak with her about the items she had pawned. At the conclusion of the evidence, the jury found Appe llant guilty as charged in each i nformation. Appellant chose to have the tr ial 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 trial7 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, th e 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 th e 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 w ere stolen when she pawned them

. She also contends there was no factual basis for ordering that she pay restitution as part of her commun ity 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 th at property. See Tex. Penal Code Ann. § 31.03(a) (West Supp. 2012). Appropriation of property i s 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 i s $50 or more but less than $500. Id. at § 31.03(e)(2)(A)(i).8 II. S U FFICIENCY OF THE E VIDENCE 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 fou nd 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, w e 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 pawn shop re ceipt shows it was pawned on December 14 , whereas Mc C oy 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, Pe rez described it as silver, and Officer Stephens described it as blue. At most, th e 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 pawn9 shop and it was subsequently confiscated by the police as stolen property

. When the police returned his iPod, McCoy testified he was confide nt 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 show ed “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 d iscovered the burglary o n December 15. Cons idering 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. W e will not substitute our judgment for t hat 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 repla cing the property within a reasonable time after the theft. T EX
. P EN AL C ODE A NN
. § 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, 90 9 (Tex.Crim.App. 1986)), and “[s]uch testimony is sufficient evidence for the trier of fact to determine value, based on the witness’10 credibility.” Id. Aga in , we will not substitute our judgment for that of the jury and,
a ccordingly, we find the State’s evidence was sufficient to establish the requisite amount for a Class B misdemeanor conviction

. As to w hether Appellant knew the property was stolen when sh e 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 Lac ox misunderstood her statement on the videot ape 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 Lac ox ’s testimony to be more credible. Appellant’s first point of error is overruled.
II. R ESTITUTION 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 T EX
. C ODE C RIM
. P ROC
. A NN
. art. 42.037(a) ( W EST S UPP . 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, 1 20 S.Ct. 1730, 146 L.Ed.2d 650 (2000)

. See Martin v. State, 874 S.W.2d 674, 67 9
- 80 (Tex.Crim.App. 1994) (“Notions of ‘ justice and fairness ’ dictate that a defendant be punished only for the crime of whic h he [or she] was convicted.”) An appella te court reviews challenges to11 restitution orders under an abuse of discretion standard ; s ee 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 implicate s due process considerations

. See Campbell v. State, 5 S.W.3d 693 , 697 (Tex.Crim.App. 1999) (“A trial court ma y 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 associate d with a crime for which he was found no t 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 ordere d 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 4 70

. 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 rad io
c ollectively 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, charge s Appellant with theft o f12 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 ow ners. T here was no charge to the jury on the law of parties or the offense of burglary of a vehicle ; s ee 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 o n 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 the m.
B ased 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 pe t.) (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 p ay restitution. S ee E x parte Pena, 739 S.W.2d 50, 51 (Tex.Crim.App. 1987) (where trial jud ge 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 55 2, 555
- 56 (Tex.Crim.App. 2010). See also Idowu v. State, 73 S.W.3d 918, 921
- 22 (Tex.Crim.App. 2002).13 condition”). See also Reasor v. State, 281 S.W.3d 129, 135 (Tex.App.

— San Anton io 2008, pet. ref’d) (community supervision order modified to delete portion of judgment imposing restitution). Appellant’s second point of error is sustained.
C ONCLUSION 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

.