Opinion
No. 05-09-00116-CR
Opinion Filed July 29, 2011. DO NOT PUBLISH. Tex. R. App. P. 47.
On Appeal from the Criminal District Court No. 7, Dallas County, Texas, Trial Court Cause No. F07-01438-Y.
Before Justices MOSELEY, RICHTER, and LANG-MIERS.
OPINION
Lemuel Carl Burt appeals his conviction for misapplication of fiduciary property. A jury assessed appellant's punishment at 14 years' incarceration and a $10,000 fine. The judgment also reflects an order of restitution in the amount of $591,785. On appeal, appellant argues that the evidence is insufficient to support the conviction, the trial court erred by denying his motion to suppress evidence, and the restitution order must be vacated. For the following reasons, we affirm the trial court's judgment.
Background
The State accused appellant of operating a Ponzi scheme involving real estate. Appellant testified that his company, Carl Burt Enterprises, trains people to buy and sell real estate and assists home buyers who lack funds for a down payment on a home. In 2004, he started a program called the "Down Payment Assistance Program." In this program, investors purchased what appellant referred to as a "unit" for $10,000 each. The funds generated from the purchase of the units were to be lent to prospective home buyers who lacked good credit and funds for a down payment. The home buyers were to repay the loan within 30 days using the proceeds of the resulting home loan for which the home buyer now qualified. For each $10,000 investment, the investor was to receive a profit of $2,500 at the end of the 30 days. Appellant also gave each investor the option of rolling over the $10,000 plus profit to purchase another unit or portion of a unit for another 30-day period. Around this same time, appellant also started a program called the Credit Home Investment. In that program, appellant would find a prospective home buyer who needed assistance in purchasing a house. He would lease-purchase a financially distressed house and sell or assign the contract to an investor, many of whom were the same investors participating in the Down Payment Assistance Program. The intended buyer would then lease-purchase the house from the investor for a year or two and establish equity in the house. Appellant's profit was the difference in his contract price with the seller and the contract price with the investor. The investor made a profit when he was able to sell the house to the intended buyer. Appellant told the investors in this program that they did not have to do or pay anything to profit from the transaction and that he would handle everything. However, many of them signed loan documents. If the intended buyer was not approved for a mortgage, the investors continued to be obligated on those loans. When that happened, the investors lost the houses in foreclosure if they were unable to pay the mortgage or sell the houses. Appellant testified that he attempted to fully compensate the investors by making the mortgage or lease payments to the investors if the loans for the intended buyers did not materialize or there were no tenants making lease-purchase payments. He also testified that he used funds from the Down Payment Assistance Program to make those mortgage or lease payments connected with the Credit Home Investment program. In July 2005, several checks that appellant wrote to investors for their profits in the Down Payment Assistance Program were returned because of insufficient funds in the account, and several of the investors made appointments with appellant to get cashier's checks to replace the checks that did not clear. But appellant disappeared in late July 2005 without keeping those appointments or making those checks good. His wife reported him missing, and an investigation ensued. Michael Shackelford, the Director of Public Safety for the City of Oak Point in Denton County, testified that a police officer called him at home and told him that Ann Burt, appellant's wife, had made a "missing person, suspicious circumstances" report. The officer told Shackelford that appellant had missed appointments and had disappeared for over 24 hours. Mrs. Burt told the officer that "it just wasn't like him. She knew something was wrong." Shackelford went to see Mrs. Burt, who was "[b]orderline hysterical." She and her son "were pretty upset" and mentioned "that this was very unusual." He said there were a number of friends and family there at the house, including a man named Don Blair. Shackelford asked Mrs. Burt for details to help locate appellant, and she consented to a search of the residence "for anything that might lead us to his whereabouts," such as an organizer or appointment book. Blair told Shackelford that he had driven to the Addison airport at three o'clock in the morning looking for appellant. Shackelford thought that was "completely odd." Shackelford later learned that appellant was driving Blair's vehicle and using Blair's toll tag. Shackelford testified that the next day he received a call from Kathy Connor. Connor told Shackelford that appellant owed her quite a bit of money and that she had reported appellant to the Denton County District Attorney's Office. She gave Shackelford details about the types of financial arrangements she had with appellant and said she believed appellant had fled. Connor testified that appellant was helping her invest in real estate. She said appellant told her that she was making quite a bit of money and that she should be proud. Connor did not actually receive the money, however, because appellant said he was handling everything for her, including putting the money in an account for her benefit. At appellant's suggestion, Connor had moved into a house that she could not afford. She said she and her children were barely getting by even though appellant was making the mortgage payments. But when appellant disappeared, she was unable to make the mortgage payments and had to move in with a friend. After speaking with Connor, Shackelford said "the first thing we did, just like any investigation, we went to locations where he was going when he left the house." Mrs. Burt told Shackelford that appellant had asked for her Rolex watch so he could pawn it; she said this was not uncommon when he was having financial problems. Shackelford talked to the pawn shop owner who told Shackelford that appellant was a regular customer. He also told Shackelford that he paid appellant $1,500 for the watch and would have paid more, but appellant said he only needed $1,500. Shackelford then "checked all directions of the road on that pawn shop [sic] looking for gas stations, looking for videotapes of that vehicle he was driving or anything else." Shackelford testified that "we couldn't find any videotape, nothing that showed the last direction of that truck, any type of travel[.]" He next asked Mrs. Burt for consent to search appellant's business locations. He told Mrs. Burt "these are the things we are looking for — we are looking for because of the nature of her call, of [K]athy Connor's call, we thought, okay, is there other people he owes money to that might be a little bit more angry with Mr. Burt than [K]athy Connor." Shackelford told Mrs. Burt he was "looking for any investor information . . . for any houses that he might technically own or have access to in the area where he might be hiding or where he might have met someone and harm come to him . . . business appointments, things like that." Mrs. Burt gave Shackelford verbal consent to search the offices. She also told Shackelford that appellant's sister, Minnie Turner, was appellant's office manager, and Shackelford said he "felt the prudent thing to do would be to get consent from her." A police officer obtained written consent from appellant's office manager to search both office locations. Shackelford testified that one of the things that concerned him was that appellant left his medication for gout, which he took daily, at the house. Shackelford testified that if appellant did not take his medication, "he could barely move or anything like that." He said he did not want appellant "wasting away in a house somewhere where nobody knew where he was or did anything else, so we began searching the houses also." Shackelford took several boxes of documents and a computer from appellant's offices. About two weeks later, the San Antonio Police Department notified Shackelford that they had located appellant's car in a parking garage; it had been burglarized. Sometime later, appellant contacted his wife; he was in Glendale, Arizona. She told Shackelford that appellant had contacted her. Police officers in Arizona notified Shackelford that they located appellant and that he appeared to be in good physical condition. At that point, Shackelford said "that's all we needed, and we were done." At some point, Shackelford gave the documents and computer he had obtained from Burt's offices to the Securities and Exchange Commission, which, in turn, gave them to the Dallas County District Attorney's Office. Ricky Sluder, a certified fraud examiner and special investigator in the Specialized Crime Division of the Dallas County District Attorney's Office, testified that he investigates financial, fraud-related crimes. He said he received several boxes of documents and a computer from the SEC and started his own investigation into appellant's activities. He looked through the documents and found names of people and interviewed them. Then he subpoenaed bank records and began analyzing those records. He found 15 bank accounts on which Burt was a signatory; 5 involved investor money. He analyzed those accounts and prepared summaries of his analyses, which were admitted into evidence. His investigation showed that when appellant deposited an investor's funds, about the same amount of money or more was withdrawn from that account within a matter of days. Appellant's accounts were frequently overdrawn. Checks drawn on the accounts were payable to Sprint, Home Shopping Network, Sam's Club, Office Max, and others, and some were cash withdrawals. Sluder testified that none of the funds were used to assist the home buyers listed in the contracts with down payments or to repay investors. The State offered an exhibit showing that appellant deposited a total of $846,785 into the Down Payment Assistance Program and repaid investors only $255,000. Sluder testified that appellant had over 280 contracts with investors and that he used funds he received from later investors to pay earlier investors, which he characterized as a Ponzi scheme. Appellant testified that he had a mental breakdown and somehow ended up in Arizona. He said he did not contact anyone because he suffered a gout attack and "never left the bed" for 19 days. He said hotel employees physically carried him to a room on the ground level and put him in a wheelchair. He called his wife and told her he was okay. She told him that the police had taken his records and computer and had shut down his business, so he told her he would stay in Arizona "to work through this thing. . . ." He returned to Texas on November 1, 2005, almost four months after he disappeared.Sufficiency of the Evidence
In his first and second issues, appellant challenges the sufficiency of the evidence to support a finding that he intentionally or knowingly misapplied investor funds. When we review a challenge to the sufficiency of the evidence, we examine all the evidence in the light most favorable to the verdict and determine whether a rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Brooks v. State, 323 S.W.3d 893, 899 (Tex. Crim. App. 2010) (plurality op.). We defer to the jury's credibility and weight determinations because the jury is the sole judge of the witnesses' credibility and the weight to be given their testimony. See Jackson, 443 U.S. at 326. "A person commits an offense if he intentionally [or] knowingly, . . . misapplies property he holds as a fiduciary . . . in a manner that involves substantial risk of loss to the owner of the property or to a person for whose benefit the property is held." Tex. Penal Code Ann. § 32.45(b) (West 2011). The offense is a first-degree felony if the value of the property misapplied is $200,000 or more. Id. § 32.45(c)(7). Appellant challenges only the sufficiency of the evidence to support a finding that he misapplied the property. A person misapplies property if he acts contrary to "(A) an agreement under which the fiduciary holds the property; or (B) a law prescribing the custody or disposition of the property." Id. § 32.45(a)(2). Appellant argues that the evidence is insufficient to show that he used the funds for something other than for the Down Payment Assistance Program. The State presented evidence that appellant signed over 280 contracts with over 20 people in connection with the Down Payment Assistance Program. Sixteen of those people testified that they gave appellant $10,000 per "unit" for what they thought was an investment in the Down Payment Assistance Program. The contracts stated that the $10,000 payment was a "loan" to Carl Burt Enterprises, that the sum "shall be paid back plus profit of $2,500 after closing on loan," and that Carl Burt Enterprises "shall be solely responsible for the safe keeping and return of the monies to" the investor. Some of the victims testified that appellant told them the money would be placed in a secure bank account and invested in real estate. Each of the 280 contracts listed either a specific property for which the money would be invested or a specific person who would benefit from the funds in the form of a down payment loan. The State presented evidence that none of the funds given to Carl Burt Enterprises for the purpose of investing in the Down Payment Assistance Program were actually received by the beneficiaries listed in the contracts or used to purchase the properties listed in the contracts. The State also presented evidence that after appellant made a deposit to his account with funds from an investor, the same amount or more was spent on payroll, rent, and other expenses. The evidence showed that some of the funds were used to make mortgage or lease payments on houses in the Credit Home Investment program, and some of the funds received from later investors were used to pay appellant's obligations to earlier investors. Appellant admitted that he did not always use the funds to assist with down payments or to repay investors. He also admitted that he owes the victims "some money" and that he got "way, way over [his] head with all the things that [he was] doing." But he argues that all investments have risks and that the investors who testified could only testify about the funds they invested with him and what they received in return; they were unable to testify about how he used the funds they invested. He also contends that the State did not prove he misapplied $200,000 or more of those funds. He argues that of the $846,785 deposited from investors, the State was unable to show how over $497,000 in cash withdrawals and over $112,000 in checks were used and could not verify that they were not used in the Down Payment Assistance Program.We disagree.
Viewed in the appropriate light, the State proved that appellant received $846,785 from the victims and returned a total of only $255,000 to some of them. It also proved that appellant diverted the funds he received from the investors to other uses and that none of the funds was used in the manner contemplated by the contracts appellant signed with those investors. We conclude that the evidence is sufficient to support a finding that appellant misapplied $200,000 or more of the victims' funds. See Dwyer v. State, 836 S.W.2d 700, 702 (Tex. App.-El Paso 1992, pet. ref'd); Romine v. State, 722 S.W.2d 494, 502 (Tex. App.-Houston [14th Dist.] 1986), pet. ref'd, 747 S.W.2d 382 (1988). We resolve issues one and two against appellant.Motion to Suppress
In his third issue, appellant argues that the trial court erred by denying his motion to suppress the records seized from his offices. We review a trial court's ruling on a motion to suppress under a bifurcated standard of review. St. George v. State, 237 S.W.3d 720, 725 (Tex. Crim. App. 2007). We give almost total deference to the trial court's determination of historical facts, particularly when the trial court's findings are based on an evaluation of credibility and demeanor. Id.; Amador v. State, 221 S.W.3d 666, 673 (Tex. Crim. App. 2007). We afford the same deference to mixed questions of law and fact if resolving those questions turns on an evaluation of credibility and demeanor. Amador, 221 S.W.3d at 673; Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). If resolution of mixed questions of law and fact does not turn on an evaluation of credibility and demeanor, we review those questions de novo. Amador, 221 S.W.3d at 673; Guzman, 955 S.W.2d at 89. We review the evidence in the light most favorable to the trial court's ruling. State v. Garcia-Cantu, 253 S.W.3d 236, 241 (Tex. Crim. App. 2008). When, as here, the trial court makes explicit fact findings, we determine whether the evidence, viewed in the light most favorable to the ruling, supports those fact findings. State v. Kelly, 204 S.W.3d 808, 818 (Tex. Crim. App. 2006). We will uphold the ruling if it is supported by the record and correct under any theory of law applicable to the case. St. George, 237 S.W.3d at 725. It is undisputed that Shackelford took records from appellant's two office locations without a warrant. It is also undisputed that Shackelford obtained consents from appellant's wife, his office manager, and his landlord to search the offices. At the hearing on the motion to suppress, the State argued that appellant did not having standing to contest the seizure because he abandoned the property when he voluntarily disappeared. Appellant testified that the documents came from his office, that he was current on his rent, that he did not give his landlord permission to consent to a search of his office, and that he did not intend to abandon the property. Appellant introduced evidence showing that he gave cashier's checks to his landlord dated May 3, 2005, June 3, 2005, and July 8, 2005, each in the amount of his monthly lease payment. He said he paid his rent on time every month for those three months. He also testified that he was in the process of moving his Addison office. He said he had a mental breakdown and did not know he was leaving town until five minutes before he left. He also testified that his sister is an authorized signer on his business bank account. Shackelford testified that based on his investigation, he asked for consent to search appellant's offices. Appellant's office manager gave him written consent to search both offices. He said that when he arrived at appellant's Addison office, "it was obvious that they were moving out." The mortgage broker appellant used "was no longer there." Appellant's landlord said he had evicted appellant for failure to pay rent for 90 days and that Shackelford's consent to search was "no good." At some point, the landlord said he had spoken to his attorney and gave Shackelford written consent to search appellant's office. When Shackelford went inside the office, he saw business records pertaining to the types of investments Connor had told him about-things, he said "that by their very nature you could tell these aren't right. It is just a normal prudent person could look at this and say, this is too good to be true." So he became suspicious that appellant was involved in fraudulent activity involving real estate. Shackelford testified that he decided to take appellant's records with the consent of the landlord, appellant's wife, and the office manager because of all the suspicious circumstances, appellant's abrupt disappearance, Connor's call, and his suspicion of fraudulent activity. He said he "considered it exigent circumstances due to the fact of the time frame of his leaving, the circumstances surrounding the way he left, and a concern for his personal well-being." On cross-examination, Shackelford testified that he took no steps to verify that appellant was 90 days past due on his rent. And he said the first things he looked for in the numerous boxes of documents were the names of people with whom appellant had recent real estate business dealings. He also looked for names of people with whom appellant had lunch, dinner, or other appointments around the time he disappeared. Shackelford testified that approximately three weeks after appellant disappeared, he learned that appellant had talked to his wife and told her he did not want the police involved. Mrs. Burt told Shackelford about the conversation. She also told Shackelford that appellant told her to "never call the phone number he had called from again" and something about "[t]here were other people involved." Shackelford said that information heightened his suspicions. He gave the items he obtained pursuant to the consent search to the SEC approximately two weeks later. The trial court denied the motion to suppress and issued findings of fact and conclusions of law, which state in pertinent part: The Court finds that the Defendant voluntarily disappeared in July of 2005. He received $1500 from a pawn shop then left town. He did not inform anyone of his whereabouts. The Court finds that the Defendant's wife, Ann Burt, called the Oak Point police to file a missing person, suspicious circumstances report. The Court finds that after speaking to the Defendant's wife, the police started to investigate Defendant's possible whereabouts. With the wife's consent, police searched her home. They also checked the pawn shop that Defendant visited before disappearing. The Court finds that during the investigation, police received a call from Cathy [sic] Connor who told officers that the Defendant owed her quite a bit of money and that she took her case to the Denton County District Attorney's Office. This call led officers to investigate Defendant's places of business. The Court finds that the officers obtained verbal consent to search the Defendant's places of business from his wife and from the Defendant's office manager. The office manager is also the Defendant's sister and is an authorized signatory on Defendant's business accounts. The police were searching for any information on houses the Defendant might own, places he might have access to, and people who might harm him. The Court also finds that the landlord of the Defendant's Beltline Road business location told police he had evicted defendant for not paying rent for ninety days, and he gave police written consent to search the office. The Court finds that once the officers examined the Defendant's records, they discovered that he was involved with some kind of fraudulent activity. The Court finds that police took the records from the Dallas and Aubrey offices with consent of the Defendant's wife, his sister acting as office manager, and the landlord. Officers were using these records in an attempt to locate the Defendant. The Court concludes that the Defendant abandoned both locations of his business when he disappeared and didn't tell anyone his whereabouts[.] The Court concludes that the Defendant has no standing to contest the seizure of the files because of his abandonment. The Court concludes that the Defendant had no reasonable expectation of privacy in the files due to his purposeful disappearance and abandonment of his businesses. The Court concludes that the [sic] due to the Defendant's abandonment, the police legally seized the Defendant's records from the Aubrey office. The Court concludes that the Defendant's wife, his sister acting as office manager, and the landlord had standing to give consent to search of the office and to seize the records at the Dallas and Aubrey offices. The Court concludes that the police acted within their authority to ensure the safe return of the Defendant. Accordingly, the records were legally seized from both offices and should not be suppressed. The same evidence that was presented at the suppression hearing was also presented to the jury at trial. Out of the presence of the jury, the trial court orally stated that, in addition to the rationale he previously stated for denying the motion to suppress, he also denied the motion to suppress based on exigent circumstances, because consent was lawfully given, and that it could have reasonably appeared to Shackelford that the premises had been abandoned. On appeal, appellant argues that the search and seizure violated his rights under the Fourth Amendment, and he challenges the trial court's conclusions with regard to the abandonment, consent, exigent circumstances, and community care-taking exceptions to the warrant requirement. The Fourth Amendment protects citizens against unreasonable searches and seizures. U.S. Const. amend. IV; Illinois v. Rodriguez, 497 U.S. 177, 181 (1990); Limon v. State, No. PD-1320-10, 2011 WL 2409301, at *1 (Tex. Crim. App. June 15, 2011). A warrantless search or seizure is unreasonable unless the search or seizure falls within an exception. See Limon, 2011 WL 2409301, at *1. One of those exceptions is when voluntary consent has been obtained from the individual whose property was searched or from a third party who possessed common authority over the searched premises. Illinois, 497 U.S. at 181; Limon, 2011 WL 2409301, at *1. "`Common authority' rests `on mutual use of the property by persons generally having joint access or control for most purposes. . . .'" Id. (quoting United States v. Matlock, 415 U.S. 164, 171 n. 7 (1974)). It is "derived from the third party's use of the property rather than his legal property interest[.]" Limon, 2011 WL 2409301, at *2. Even if actual authority to consent does not exist, "consent may be validly obtained from an individual with apparent authority over the premises." Limon, 2011 WL 2409301, at *2 (citing Rodriguez, 497 U.S. at 188). We determine apparent authority using an objective standard and ask "`would the facts available to the officer at the moment warrant a man of reasonable caution in the belief that the consenting party had authority over the premises?'" Id. (quoting Rodriguez, 497 U.S. at 188 (internal citations omitted)). The question "is whether the officer's belief in an individual's authority is reasonable under the facts known to the officer." Id. (citing Rodriguez, 497 U.S. at 188). In Shackelford's conversation with Mrs. Burt, he learned that appellant had an office manager, appellant's sister, who was also an authorized signer on appellant's business bank accounts. An Oak Point police officer obtained the office manager's written consent to search appellant's offices. Appellant argues that it is not objectively reasonable for Shackelford to infer from the officer manager's title that she had authority to consent to the search. He contends that "[i]t is common knowledge that the duties and authority of an `office manager' vary widely from business to business." But the written consent that the office manager signed stated that the premises were "under my control. . . ." And based on what Shackelford knew at the time, he could have reasonably believed that the office manager, by reason of the nature of her employment, had "common authority" or apparent authority to consent to the search. See Illinois, 497 U.S. at 181; United States v. Antonelli Fireworks Co., 53 F.Supp. 870, 874 (W.D.N.Y. 1943), aff'd, 155 F.2d 631 (2nd Cir. 1946); Limon, 2011 WL 2409301, at *1-2. Appellant also argues that even if the consent to search was valid, the seizure of the boxes exceeded the scope of the consent. A consent search is limited in scope by the terms of its authorization. State v. Bagby, 119 S.W.3d 446, 450 (Tex. App.-Tyler 2003, no pet.). Appellant contends that the scope of the office manager's consent in this case was limited to "information pertaining to people Appellant was supposed to meet on the day he disappeared." But the office manager's written consent authorized Shackelford to search "any items such as luggage, boxes, personal items, and any contents thereof." Shackelford's search of the boxes was expressly contemplated by the consent. Consequently, we conclude that the search did not exceed the scope of the consent. See Cardenas v. State, 857 S.W.2d 707, 711 (Tex. App.-Houston [14th Dist.] 1993, pet. ref'd) (written consent to search "vehicle" reasonably included compartments of vehicle, including tire well). We conclude that the trial court did not err by denying the motion to suppress. We resolve issue three against appellant.Restitution Order
In issue four, appellant argues that the trial court's restitution order contained in the judgment must be vacated because the trial court did not orally pronounce the restitution in open court and, as a result, the judgment does not conform to the orally pronounced sentence. Alternatively, appellant argues in issue five that the restitution order included in the judgment should be reversed and remanded for a hearing on the amount of restitution. Appellant relies on Bailey v. State, 160 S.W.3d 11 (Tex. Crim. App. 2004) to support his argument that the restitution order must be vacated. He contends that Bailey held that restitution is part of the sentence and, as a result, must be orally pronounced. He further contends that because the trial court did not orally pronounce the restitution amount, Bailey requires us to vacate the restitution order. In general, to preserve error the complaining party must make a timely objection. Tex. R. App. P. 33.1(a). We conclude that we do not need to reach issues four and five because appellant has not preserved them for our review. See id. At the end of closing arguments in the punishment phase of trial, the trial court, in appellant's presence, asked the State to prepare a proposed order of restitution with a memorandum to support the amount. The court stated, "You can rely on everything that was introduced in the case. We don't need to have a hearing on it as far as an evidentiary hearing, but if y'all can't come up with an agreed figure, then we will have to have a hearing on it at some point in the future, okay? And the sooner, the better." After the court accepted the verdict in the punishment phase and dismissed the jury, the court orally pronounced appellant guilty and assessed his punishment in accordance with the jury's verdict. The court reminded the parties that "[t]he sooner we can get that restitution matter taken care of, the better." The court's docket sheet reflects that the trial court assessed appellant's sentence in accordance with the jury's verdict on January 15, 2009, and noted "Restitution order to follow." No further recorded proceedings were held, but the docket sheet reflects an entry one day later on January 16, 2009, stating, "Restitution ordered." The judgment, also dated January 16, 2009, contains a restitution order in the amount of $591,785. Attached to the judgment are documents supporting the total restitution amount and the amount to each victim, but the record does not reflect that the restitution order was orally pronounced. Appellant did not object to the trial court's imposition of restitution. When the trial court told the State to submit a memorandum regarding restitution and stated that a hearing would be necessary only if appellant and the State could not agree on an amount, appellant did not lodge any objection to the imposition of restitution and did not request a restitution hearing. The record reflects that the restitution order was signed the next day, but again there is nothing in the record to indicate that appellant objected to the amount or asked for a hearing. Appellant filed a motion for new trial, but he did not include restitution as an issue in that motion. Although the file-stamp date on the motion is one day before the judgment was signed, appellant did not file an amended motion for new trial raising the restitution issue. Appellant had an opportunity to object to the trial court's action within the time frame for filing a motion for new trial and the notice of appeal. Even without a restitution hearing, a timely filed motion or amended motion for new trial raising the restitution issue would have preserved this question for our review. See Idowu v. State, 73 S.W.3d 918, 921 (Tex. Crim. App. 2002); see also Issa v. State, 826 S.W.2d 159, 160-61 (Tex. Crim. App. 1992). Appellant also argues that we should vacate the restitution order and remand for a hearing on restitution because there is no record to indicate how the trial court calculated the restitution, and the order includes the names of victims not included in the indictment. However, for the same reasons we stated above, appellant also failed to preserve this issue for our review. See Tex. R. App. P. 33.1(a). We resolve issues four and five against appellant. The State argues that the amount of restitution should be increased by $5,000 because the exhibits attached to the judgment show that one of the victims actually received a profit of $5,000, not a loss. The State contends that the $5,000 profit improperly offsets the other victims' losses. But the State has not argued and we do not find any record support showing how they preserved this issue for our review. See Tex. R. App. P. 33.1(a).Conclusion
We affirm the trial court's judgment.The program was referred to by different names throughout the trial. Appellant used this name in his testimony, and that is the name we will use.
Appellant testified that Turner was his assistant office manager.
He testified that he did not search the contents of the computer for evidence of a crime.
All of the contracts were worded similarly: Investment funds for down payment verification. [Name of investor] shall loan to Carl Burt Enterprises the sum of $10,000 which shall be held for verification for down payment on loan for [address of property or name of beneficiary] and shall be paid back plus profit of $2,500 after closing on loan on or before [date], 2005. Carl Burt Enterprises shall be solely responsible for the safe keeping and return of the monies to [name of investor]. The monies have been received and shall be returned by check after closing.
This standard of review is also sometimes referred to as an abuse of discretion. See Martinez v. State, No. PD-1238-10, 2011 WL 2555712, at *2 (Tex. Crim. App. June 29, 2011).