No. 05-08-01055-CR
Opinion issued May 7, 2010.
On Appeal from the Criminal District Court No. 2, Dallas County, Texas, Trial Court Cause No. F08-71223-VI.
Before Justices MOSELEY, RICHTER, and FRANCIS.
Opinion By Justice MOSELEY.
Dannie McBryer pleaded guilty to the offense of burglary of a building. See Tex. Penal Code Ann. § 30.02(a)(1), (c)(1) (Vernon 2003); see also id. § 12.35 (Vernon Supp. 2009) (providing for state jail felony punishment). After hearing evidence, the trial court placed him on deferred adjudication community supervision for five years. A condition of his supervision was payment of restitution. After hearing evidence, the trial court ordered restitution of $2,650. In four issues, McBryer challenges the sufficiency of the evidence supporting the amount of restitution. The background of the case and the evidence adduced at trial are well known to the parties; thus, we do not recite them here in detail. Because all dispositive issues are settled in law, we issue this memorandum opinion. Tex. R. App. P. 47.2(a), 47.4. For the reasons set forth below, we resolve McBryer's four issues against him and affirm the trial court's judgment.
APPLICABLE LAW AND STANDARD OF REVIEW
In addition to any fine authorized by law, the sentencing court may order a defendant convicted of an offense to make restitution to any victim of the offense. Tex. Code Crim. Proc. Ann. art. 42.037(a) (Vernon Supp. 2009). The State bears the burden of proving, by a preponderance of the evidence, the amount of the loss sustained by a victim as a result of the offense. Id. art. 42.037(k). The trial court resolves any dispute relating to the proper amount or type of restitution. Id. The trial court must set an amount of restitution that is just and has "a factual basis within the loss of the victim." Campbell v. State, 5 S.W.3d 693, 696 (Tex. Crim. App. 1999). Because due process concerns are implicated, for an amount of restitution to be supported by a factual basis, it must necessarily be supported by evidence in the record. Id.; Cartwright v. State, 605 S.W.2d 287, 289 (Tex. Crim. App. [Panel Op.] 1980); see Idowu v. State, 73 S.W.3d 918, 922 (Tex. Crim. App. 2002) (stating "[w]hether the record provides a sufficient factual basis for a particular restitution order could be considered an evidentiary sufficiency question"). We review restitution orders under an abuse of discretion standard. Cartwright, 605 S.W.2d at 289. A trial court 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. Gonzalez v. State, 117 S.W.3d 831, 839 (Tex. Crim. App. 2003); Montgomery v. State, 810 S.W.2d 372, 380 (Tex. Crim. App. 1990). EVIDENCE
At the hearing on restitution, Daryl Thomas testified, without objection, that he owned San Daga Market where he sold indigenous African art, jewelry, and textiles. On direct examination, counsel referred to a police report listing the items Thomas reported missing. Thomas testified that McBryer returned some of the items he took, but that some items were still missing. Thomas testified concerning the missing jewelry items and their value: (a) one African amber necklace, valued at about $1,000; (b) an amber pendant worth about $1,100; (c) two amber beaded pieces worth $250 each; and (d) another African amber necklace, valued at $1,100. He said McBryer returned a ram's head that was damaged, and the repair would cost $25. He also testified that a set of two spears valued at $1,500 were missing, although they were not listed on the police report. All told, these values total $5,225. The police report was not introduced into evidence. On cross-examination, Thomas testified he did not have "any receipts or any paperwork showing the value of the things" that were missing. He based their value on "market value, what I sell them for and what I paid for them." He bought the items in African villages, and had no receipts for them. He said that although customers paid for merchandise by check and credit card, he did not have any such documentation at court. McBryer testified that he took Thomas's property but returned all of it except for a necklace. McBryer admitted he did not know exactly what he had taken. He had an office in Thomas's store, was familiar with the prices of the items, and the prices Thomas quoted were "exorbitant." He recommended that another dealer give comparative values "because I don't believe they are worth that much or that he could procure that much in the retail market for them." DISCUSSION
In his second issue, McBryer contends the trial court abused its discretion in setting the amount of restitution because there was an insufficient basis to support the trial court's implied finding that he failed to return a necklace and the two beaded pieces. Thomas testified McBryer returned several items listed on the police report but that specific pieces of jewelry, including a necklace and two beaded pieces, were not returned. We conclude the trial court's implied finding that McBryer failed to return certain items has a sufficient factual basis in the record. See Campbell, 5 S.W.3d at 696. McBryer also argues under his second issue that the testimony about the missing inventory was not supported by any documents. He maintains that, without documentation, Thomas could not "reasonably claim that he had any meaningful personal knowledge about his inventory." Thomas testified he could not remember "every little minute thing" in the store, but he remembered the amber pieces. In addition, he testified he bought and sold his merchandise. McBryer did not object on the basis of lack of personal knowledge. See Moff v. State, 131 S.W.3d 485, 490-91 (Tex. Crim. App. 2004) (explaining difference between challenging failure to prove an element and admissibility of evidence of method of proof). We conclude the inventory included in the computation as missing has a sufficient factual basis in the record. See Campbell, 5 S.W.3d at 696. Discerning no abuse of discretion, we resolve McBryer's second issue against him. In his third issue, McBryer contends that Thomas's testimony failed to establish the value of the missing items, arguing specifically that Thomas lacked personal knowledge about those values. Because he failed to object to the admissibility of the evidence on this ground, he has failed to preserve this challenge for review. See Moff, 131 S.W.3d at 490-91. We resolve McBryer's third issue against him. In his fourth issue, McBryer contends the trial court abused its discretion by relying on expectation values in setting the amount of restitution, arguing that Thomas's testimony established their expected value at a future sale. See Tex. Code Crim. Proc. Ann. arts. 42.037(b)(1)(B) (providing guidelines on establishing date property valued). To the extent that McBryer challenges the admissibility of evidence establishing the method used to determine the value of the missing items, he has failed to preserve error. See Moff, 131 S.W.3d at 490-91. To the extent McBryer argues there is an insufficient factual basis in the record to support the amount of restitution, we disagree because testimony from the owner of property, like Thomas, may establish the property's value and is adequate to support a restitution order. See Sullivan v. State, 701 S.W.2d 905, 909 (Tex. Crim. App. 1986); Maloy v. State, 990 S.W.2d 442, 444-45 (Tex. App.-Waco 1999, no pet.); Urias v. State, 987 S.W.2d 613, 614-15 (Tex. App.-Austin 1999, no pet.). Discerning no abuse of discretion, we resolve McBryer's fourth issue against him. In his first issue, McBryer argues the trial court abused its discretion in setting the amount of restitution because the trial court miscalculated the amount. However, because the trial court's computation of $2,650 was within the amount Thomas calculated as his loss ($5,225), we conclude the amount of restitution has a sufficient factual basis in the record. See Campbell, 5 S.W.3d at 696. Discerning no abuse of discretion, we resolve McBryer's first issue against him. CONCLUSION
Having resolved McBryer's four issues against him, we affirm the trial court's judgment.