Opinion
NO. 12-16-00220-CR
06-14-2017
JERRY MARCUS MCCOY, III, APPELLANT v. THE STATE OF TEXAS, APPELLEE
APPEAL FROM THE 7TH JUDICIAL DISTRICT COURT SMITH COUNTY , TEXAS
MEMORANDUM OPINION
Jerry Marcus McCoy, III appeals his conviction for debit card abuse. In one issue, Appellant argues the trial court's restitution order is insufficient. We affirm.
BACKGROUND
On November 24, 2015, Appellant and Ivan Ferrell stole Alyssa Christian's wallet and used her debit card to purchase a pair of headphones, a television mount, and a bedding set from a Wal-Mart in Tyler, Texas. These items totaled $183.66. Appellant and Ferrell unsuccessfully attempted other transactions. Officers with the Tyler Police Department identified Appellant and Ferrell, and subsequently located all of the items purchased with Christian's debit card.
At trial, the State offered a receipt from Wal-Mart for the unauthorized purchases, totaling $183.66, as well as photographs taken of the property after it was recovered. A representative from Texas Bank and Trust, Christian's bank, testified that the $183.66 charge was debited from Christian's account. The jury found Appellant "guilty" of debit card abuse and assessed his sentence at imprisonment for twenty years.
During sentencing, the prosecutor indicated that restitution should be made to Texas Bank and Trust because it credited the money to Christian's account. The court ordered restitution be made payable to Texas Bank and Trust in the amount of $183.66. This appeal followed.
RESTITUTION ORDER
In his sole issue, Appellant argues the trial court's restitution order is insufficient because it was not reduced by the value of the recovered property purchased with Christian's debit card. Standard of Review and Applicable Law
Texas law authorizes a sentencing court to order payment of restitution to the victim for losses sustained as a result of the convicted offense. TEX. CODE CRIM. PROC. ANN. art. 42.037(a) (West Supp. 2016). Restitution can be ordered only for injury resulting from the offense charged and can be made only to the victim, except where justice dictates payment be made to a person or party who has compensated the victim for loss. Gonzalez v. State , 954 S.W. 2d 98, 106 (Tex. App.—San Antonio 1997, no pet.). Due process requires a factual basis in the record for the amount of restitution ordered. Martin v. State , 874 S.W.3d 674, 676 (Tex. Crim. App. 1994); see also Cartwright v . State , 605 S.W.2d 287, 289 (Tex. Crim. App. [Panel Op.] 1980). Further, restitution must be "just," that is, supported by sufficient factual evidence in the record that the expense was incurred. Thompson v. State , 557 S.W.2d 521, 525-26 (Tex. Crim. App. 1977).
Challenges to the sufficiency of the evidence supporting a restitution order can be raised for the first time on appeal. See Idowu v . State , 73 S.W.3d 918, 921-22 (Tex. Crim. App. 2002). We review a trial court's restitution order for abuse of discretion. Cartwright , 605 S.W.2d at 289. The trial court abuses its discretion when it acts in an arbitrary or unreasonable manner. Montgomery v. State , 810 S.W.2d 372, 380 (Tex. Crim. App. 1990). Thus, we review the record to determine if there was sufficient factual evidence of an amount which the court could find "just." Cartwright , 605 S.W.2d at 289. Analysis
On appeal, Appellant contends the trial court abused its discretion by ordering $183.66 in restitution because the evidence at trial showed that police recovered the items bought with Christian's debit card. For this contention, Appellant cites to Article 42.037 of the code of criminal procedure which states, in pertinent part, as follows:
"[i]f the offense results in damage to or loss of destruction of property of a victim of the offense, the court may order the defendant...to return the property to the owner of
the property or someone designated by the owner, or...if return of the property is impossible or impractical or is an inadequate remedy, to pay an amount equal to the greater of...the value of the property on the date of damage, loss, or destruction...or the value of the property on the date of sentencing, less the value of any part of the property that is returned on the date the property is returned[.]"TEX. CODE CRIM. PROC. ANN. art. 42.037 (b)(1)(A), (B)(i)(ii). The statute provides the court with several options when an offense results in damage, loss, or destruction of the victim's property. See id . art. 42.037. For instance, the court may order the property returned to the owner, or if that is not possible, the court may order the defendant to pay for the value of the property. Id. art. 42.037(b)(1)(A). However, a restitution order for property damage is proper only when the property damage or destruction is a result of the offense. Lemos v. State , 27 S.W.3d 42, 47 (Tex. App.—San Antonio 2000, pet ref'd); see TEX. CODE CRIM. PROC. ANN. art. 42.037(b)(1).
Property damage or destruction is not necessarily a consequence of debit card abuse. See Lemos , 27 S.W.3d at 47 (trial court abused its discretion in ordering restitution for damaged property when it was not necessarily a consequence of the offense for which the defendant is criminally responsible); TEX. CODE CRIM. PROC. ANN. art. 42.037(a); see also TEX. PENAL CODE ANN. § 32.31 (West 2016). The penal code defines a "debit card," in pertinent part, as a card authorizing a designated person or bearer to communicate a request to obtain property or services by debit to an account at a financial institution. TEX. PENAL CODE ANN. § 32.31(a)(4). "Property" includes real property, tangible and intangible personal property, and a document, such as money, that represents or embodies anything of value. Id. § 32.01(2) (West 2016).
In this case, Appellant used Christian's stolen debit card to obtain property from Wal-Mart. However, money is the property loss resulting from Appellant's commission of debit card abuse. See id .; see also TEX. CODE CRIM. PROC. ANN. art. 42.037(b)(1). Further, the victim in this case is Christian, not Wal-Mart. See Hanna v . State , 426 S.W.3d 87, 95 (Tex. Crim. App. 2014) (defining "victim" to mean "any person who suffered loss as a direct result of the criminal offense[]"). Therefore, because the loss of money was the result of the offense at issue in this case, i.e., debit card abuse, Article 42.037(b)(1) is inapplicable. See TEX. CODE CRIM. PROC. ANN. art. 42.037(a); see also Lemos , 27 S.W.3d at 47.
The order in this case makes restitution payable to Texas Bank and Trust, the bank that held the account linked to Christian's stolen debit card. Appellant concedes that he waived any argument to the propriety of the bank as the named recipient of restitution because he did not object at sentencing when the court announced it would order restitution to the bank. See Lemos , 27 S.W.3d at 47 (defendant waived his complaint that the individual listed in the restitution order was not the victim of his crime where he failed to object when he had the opportunity at trial).
Nevertheless, Appellant cites Garza v. State , to support his position that the restitution order should be offset by the recovered property. 841 S.W.2d 19 (Tex. App.—Dallas 1992, no pet.). In Garza , the court held that the trial court abused its discretion when it ordered $1,250 in restitution to the victim of a burglary, where the victim testified at trial that his total loss was $1,240, including a stolen ladder, which he testified he later recovered and was able to salvage. Id. at 23. The court held that the appellant was entitled to receive an offset of the total loss by the salvage value of the recovered ladder, and remanded the case to the trial court. Id. We disagree that Garza supports Appellant's contention. Garza is distinguishable because, as stated above, Appellant was found criminally responsible for an offense that resulted in the loss of money to the victim. See TEX. CODE CRIM. PROC. ANN. art. 42.037(a), (b)(1); see also Lemos , 27 S.W.3d at 47.
Appellant also cites to Battee v. State , a burglary case where we stated that restitution includes the value of the property on the date of damage or on the date of sentencing less the value of any part of the property that is returned on the date the property is returned. No. 12-13-00119-CR, 2013 WL 5888138, *1 (Tex. App.—Tyler Oct. 31, 2013, no pet.) (mem. op., not designated for publication). As with Garza , Battee does not support Appellant's position, because the property damage in Battee was a result of the burglary of tangible property, not money, for which the defendant was found criminally responsible. See id .; see also Lemos , 27 S.W.3d at 47.
Regardless of whether the property purchased with Christian's debit card was recovered, Christian's account was debited $183.66 without her consent, for which Appellant has been found criminally responsible. See Cantrell v . State , 75 S.W.3d 503, 512 (Tex. App.—Texarkana 2002, pet. ref'd) (restitution ordered must be just, supported by a factual basis within the loss suffered by the victim, and for the offense for which the defendant is criminally responsible; it can only be proper for the victim or victims of the offense for which the offender is charged). There is no evidence in the record that Wal-Mart either accepted or would have accepted a return of the property purchased with Christian's stolen debit card. Most importantly, as previously discussed, the loss of money is the consequence of debit card abuse in this case. See Lemos , 27 S.W.3d at 47; see also TEX. PENAL CODE ANN. § 32.31.
Regarding the sufficiency of the order, we conclude that the record contains sufficient evidence supporting the trial court's restitution order. Christian testified that her wallet was stolen and her debit card was used without her permission. An employee of Texas Bank and Trust testified that the only successful transaction was for $183.66, which was debited from Christian's account. The State offered a receipt documenting the fraudulent transaction in the amount of $183.66. Thus, there is a factual basis in the record to justify the amount of restitution ordered. See Martin , 874 S.W.3d at 676; see also Cartwright , 605 S.W.2d at 289; Thompson , 557 S.W.2d at 525-26. Therefore, the trial court did not abuse its discretion by awarding restitution in the amount of $183.66. See Martin , 874 S.W.3d at 676. We overrule Appellant's sole issue.
DISPOSITION
Having overruled Appellant's sole issue, we affirm the trial court's judgment.
BRIAN HOYLE
Justice Opinion delivered June 14, 2017.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
(DO NOT PUBLISH)
COURT OF APPEALS TWELFTH COURT OF APPEALS DISTRICT OF TEXAS
JUDGMENT
Appeal from the 7th District Court of Smith County, Texas (Tr.Ct.No. 007-0437-16)
THIS CAUSE came to be heard on the appellate record and briefs filed herein, and the same being considered, it is the opinion of this court that there was no error in the judgment.
It is therefore ORDERED, ADJUDGED and DECREED that the judgment of the court below be in all things affirmed, and that this decision be certified to the court below for observance.
Brian Hoyle, Justice.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.