In the Court of Appeals Sixth Appellate District of Texas at Texarkana
No. 06-23-00117-CR
DAVID WAYNE MITCHELL, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 354th District Court Hunt County, Texas Trial Court No. 33459CR
Before Stevens, C.J., van Cleef and Rambin, JJ. Memorandum Opinion by Justice Rambin MEMORANDUM OPINION
After a jury trial, David Wayne Mitchell was found guilty of theft of property in an
amount of $2,500.00 or more, but less than $30,000.00.1 After a punishment hearing, the trial
court assessed Mitchell ten months’ confinement in state jail, with no fine. At a subsequent
restitution hearing, the trial court ordered Mitchell to pay restitution to the victim in the amount
of $5,640.00 and entered an amended judgment of conviction that included the restitution award.
On appeal, Mitchell asserts that (1) there is insufficient evidence supporting his theft conviction,
(2) the trial court was not authorized to conduct the restitution hearing, (3) the trial court erred
when it conducted the restitution hearing without Mitchell’s physical presence, and (4) the
amended judgment containing the restitution award is void. Because we find that sufficient
evidence supports Mitchell’s theft conviction, Mitchell did not preserve his complaints regarding
the restitution hearing, and the amended judgment is not void, we will affirm the judgment.
I. Sufficient Evidence Supported Mitchell’s Theft Conviction
A. Standard of Review
“In evaluating legal sufficiency, we review all the evidence in the light most favorable to
the trial court’s judgment to determine whether any rational jury could have found the essential
elements of the offense beyond a reasonable doubt.” Williamson v. State, 589 S.W.3d 292, 297
(Tex. App.—Texarkana 2019, pet. ref’d) (citing Brooks v. State, 323 S.W.3d 893, 912 (Tex.
Crim. App. 2010)). “Our rigorous review focuses on the quality of the evidence presented.” Id.
(citing Brooks, 323 S.W.3d at 917–18 (Cochran, J., concurring)). “We examine legal sufficiency
1 See TEX. PENAL CODE ANN. § 31.03(a), (e)(4)(A) (Supp.). 2 under the direction of the Brooks opinion, while giving deference to the responsibility of the jury
‘to fairly resolve conflicts in testimony, to weigh the evidence, and to draw reasonable inferences
from basic facts to ultimate facts.’” Id. (quoting Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim.
App. 2007)).
“In our review, we consider ‘events occurring before, during and after the commission of
the offense and may rely on actions of the defendant which show an understanding and common
design to do the prohibited act.’” Id. (quoting Hooper, 214 S.W.3d at 13). “It is not required
that each fact ‘point directly and independently to the guilt of the appellant, as long as the
cumulative force of all the incriminating circumstances is sufficient to support the conviction.’”
Id. (quoting Hooper, 214 S.W.3d at 13). “Circumstantial evidence and direct evidence are
equally probative in establishing the guilt of a defendant, and guilt can be established by
circumstantial evidence alone.” Id. (citing Ramsey v. State, 473 S.W.3d 805, 809 (Tex. Crim.
App. 2015); Hooper, 214 S.W.3d at 13). “Further, ‘we must consider all of the evidence
admitted at trial, even if that evidence was improperly admitted.’” Id. (quoting Fowler v. State,
517 S.W.3d 167, 176 (Tex. App.—Texarkana 2017), rev’d in part, 544 S.W.3d 844 (Tex. Crim.
App. 2018)).
The jury, as “the sole judge of the credibility of the witnesses and the weight to be given
their testimony[, could] ‘believe all of [the] witnesses’ testimony, portions of it, or none of it.’”
Id. (second alteration in original) (quoting Thomas v. State, 444 S.W.3d 4, 10 (Tex. Crim. App.
2014)). “We give ‘almost complete deference to a jury’s decision when that decision is based
3 upon an evaluation of credibility.’” Id. (quoting Lancon v. State, 253 S.W.3d 699, 705 (Tex.
Crim. App. 2008)).
“Legal sufficiency of the evidence is measured by the elements of the offense as defined
by a hypothetically correct jury charge.” Id. at 298 (citing Malik v. State, 953 S.W.2d 234, 240
(Tex. Crim. App. 1997)). “The ‘hypothetically correct’ jury charge is ‘one that accurately sets
out the law, is authorized by the indictment, does not unnecessarily increase the State’s burden of
proof or unnecessarily restrict the State’s theories of liability, and adequately describes the
particular offense for which the defendant was tried.’” Id. (quoting Malik, 953 S.W.2d at 240).
B. The Evidence at Trial
The evidence at trial showed that Mitchell2 entered into a contract on August 5, 2019,
with Michael Knapp to install a Generac generator at Knapp’s house. The parties agreed that the
total cost of the generator and installation was $9,400.00, with a down payment of $5,640.00 that
Knapp paid to Mitchell on August 5, 2019. Knapp testified that Mitchell told him that he needed
the down payment immediately to purchase the generator. Based on Mitchell’s representations,
Knapp believed he was paying for the generator with the down payment.
Mitchell gave Knapp several excuses for why the generator was not installed before
September 26, 2019. On September 26, Mitchell sent a text message to Knapp and represented
for the first time that he was having issues with someone regarding the installation of the
generator. He also represented to Knapp that the generator would be delivered within two days.
After receiving several more excuses from Mitchell, on September 29, Knapp responded to text
2 Mitchell held himself out as doing business as D & D Construction. 4 messages from Mitchell and demanded that Mitchell either deliver the generator to his house by
the following Tuesday or refund his money. Then, by text messages on October 6 and
October 8, Mitchell promised that the job would be completed by the end of that week.
When Mitchell failed to deliver and install the generator, Knapp offered to pick up the
generator from Mitchell’s warehouse but got no reply. On October 16, Knapp again demanded
that Mitchell either deliver the generator or refund his money. He also threatened to sue Mitchell
and file a criminal complaint if Mitchell failed to comply with his demand. The next day,
Mitchell sent a text message and offered to “talk through things,” and Knapp repeated his
previous demands. Knapp filed a criminal complaint.
Later, Mitchell called Knapp and said that he would deliver the generator in November.
On November 21, Knapp sent a text message to Mitchell and asked if he was still planning to
drop off the generator. Mitchell responded that he would deliver the generator by that weekend.
When the generator was not delivered, Knapp again offered, on November 25, to pick up the
generator. Mitchell responded and claimed that the first generator he ordered was delivered, that
a forklift had been driven through it, and that he had to order another one. He also stated he
would not be able to pick up the new generator until the following Monday or Tuesday.
According to Knapp, Mitchell never delivered or installed the generator and never
refunded the $5,640.00. Also, Knapp never received from Mitchell a receipt or proof of
purchase for any generator.
Knapp filed a criminal complaint against Mitchell on October 15, 2019, and Kelly
Phillips, an investigator with the Hunt County Sheriff’s Office, investigated the complaint.
5 Phillips was assigned the case in January 2020. When he talked with Mitchell, Mitchell did not
deny that he had a contract with Knapp and that he had cashed the check. Nevertheless, Mitchell
did not provide Phillips any documentation that showed he purchased a generator. Phillips also
gave Mitchell an opportunity to either pay the money back to Knapp or to deliver the generator.
Mitchell said that he would pay the money back. After he made several attempts to get Mitchell
to pay the money to Knapp, Phillips had an arrest warrant issued on August 13, 2020.
Mitchell’s brother, Rocky, testified that he worked part time for Mitchell after he retired
from another job in May 2019. Rocky also testified that, in August 2019, he traveled to Knapp’s
house with Mitchell and saw a generator in a box sitting in the driveway. He did not know if it
had been damaged. On cross-examination, he admitted that, in the text messages from Mitchell
to Knapp sent in September, October, and November, Mitchell never claimed that the generator
had been delivered in August.
Mitchell admitted that Knapp paid him $5,640.00 for the generator on August 5, 2019.
Mitchell also testified that the generator had been delivered in August 2019 but that a fork from a
forklift ran through the side of it. He claimed that he had purchased it at Avery Supply but
acknowledged that he could not find the receipt.3 He testified that the generator was not
returned, stating, “[W]e couldn’t return the generator during COVID.” He also claimed that the
generator was removed from the property, but he had no idea what happened to it. He admitted
that he did not get Knapp another generator but claimed that he did not do so because Knapp did
not pay his bills for Mitchell’s landscaping work.
3 Mitchell also stated that he could get a receipt from Avery Supply but admitted he had not done so in the two and one-half years between his indictment and his trial. 6 Mitchell also testified that he had ordered another generator from Lowe’s and put down a
$1,500.00 deposit but that he never received it. However, he did not have a receipt and did not
ask Lowe’s for a copy of the invoice or work order.
C. Analysis
Under the statute and indictment, to convict Mitchell, the State had to show, beyond a
reasonable doubt, that, on or about August 5, 2019, Mitchell (1) unlawfully appropriated
(2) property with a value of $2,500.00 or more but less than $30,000.00 (3) from the owner,
Knapp, (4) without the effective consent of Knapp and (5) with the intent to deprive the owner of
the property. See TEX. PENAL CODE ANN. § 31.03(a), (e)(4)(A). Mitchell challenges the
sufficiency of the evidence to support the jury’s verdict. Mitchell only argues that there was
insufficient evidence to show that he obtained the money without Knapp’s effective consent and
that he intended to deprive Knapp of the property. As to both elements, Mitchell points to his
self-serving testimony that he purchased the generator and that it was delivered to Knapp’s
property and to his contention that he did other work for Knapp that exceeded $5,600.00 in
value. However, as the fact-finder, the jury was the sole judge of Mitchell’s credibility and
could believe his testimony or not. See Thomas v. State, 444 S.W.3d 4, 10 (Tex. Crim. App.
2014).
As applicable to this case, “[c]onsent is not effective if . . . induced by deception.” TEX.
PENAL CODE ANN. § 31.01(3)(A). “Deception” includes:
(A) creating or confirming by words or conduct a false impression of law or fact that is likely to affect the judgment of another in the transaction, and that the actor does not believe to be true;
7 (B) failing to correct a false impression of law or fact that is likely to affect the judgment of another in the transaction, that the actor previously created or confirmed by words or conduct, and that the actor does not now believe to be true;
. . . or
(E) promising performance that is likely to affect the judgment of another in the transaction and that the actor does not intend to perform or knows will not be performed, except that failure to perform the promise in issue without other evidence of intent or knowledge is not sufficient proof that the actor did not intend to perform or knew the promise would not be performed.
TEX. PENAL CODE ANN. § 31.01(1)(A), (B), (E). Also, among other things, “‘[d]eprive’
means . . . to withhold property from the owner permanently or for so extended a period of time
that a major portion of the value or enjoyment of the property is lost to the owner.” TEX. PENAL
CODE ANN. § 31.01(2). Finally, “[a] person acts intentionally, or with intent, with respect to the
nature of his conduct . . . when it is his conscious objective or desire to engage in the conduct.”4
TEX. PENAL CODE ANN. § 6.03(a).
Construed in the light most favorable to the jury’s verdict, the evidence in this case
showed that Mitchell induced Knapp to pay him $5,640.00 on his promise that he would
purchase a generator and install it at Knapp’s house. Mitchell repeatedly promised Knapp over
several months that the generator would be delivered either within two days, by the end of the
week, or by the weekend. Based on this evidence, along with Mitchell’s various excuses for not
delivering and installing the generator, the paucity of any evidence that he ever purchased a
generator, and his refusal to refund Knapp his money, a rational jury could reasonably infer that
Mitchell induced Knapp to pay him money by promising performance that Mitchell did not
4 See Herrera v. State, 527 S.W.3d 675, 678 (Tex. App.—Houston [14th Dist.] 2017, pet. ref’d) (citing Ash v. State, 930 S.W.2d 192, 195 (Tex. App.—Dallas 1996, no pet.) (“unlawful appropriation is a nature-of-conduct element”). 8 intend to perform. Based on this same evidence, a rational jury could reasonably infer that it was
Mitchell’s conscious objective or desire to withhold Knapp’s money from him permanently or
for an extended period of time.
As a result, we find that a reasonable jury could find beyond a reasonable doubt that
Mitchell unlawfully appropriated $5,640.00 from Knapp, without Knapp’s effective consent, and
with the intent to deprive Knapp of his money. For that reason, we find that legally sufficient
evidence supported the jury’s verdict. We overrule this issue.
II. Mitchell’s Complaints Regarding the Restitution Hearing and Order Were Not Preserved
A. Background
On June 13, 2023, the trial court pronounced judgment in accordance with the jury’s
verdict and sentenced Mitchell to ten month’s confinement in state jail, with no mention of
restitution. That same day, the trial court entered its written judgment that reflected the ten-
month sentence, waived court costs, reflected “$0.00” under “Restitution,” credited Mitchell
with three days’ jail time, and stated that the sentence was imposed on “06-13-2023.”
Nevertheless, on July 5, 2023, the trial court held a hearing on restitution that Mitchell
attended by Zoom and his attorney attended in person. After a short hearing, the trial court
found that Mitchell owed restitution to Knapp in the amount of $5,640.00. The next day, the
trial court entered an amended judgment that sentenced Mitchell to ten months’ confinement in
state jail, assessed court costs of $290.00, and ordered restitution of $5,640.00, payable to
Knapp. Mitchell did not assert any objection during the restitution hearing or to the order of
restitution in the trial court. 9 On appeal, Mitchell complains that the trial court was not authorized to conduct a
restitution hearing. He argues that, because restitution was not pronounced during the trial
court’s original sentencing, it could not later be imposed, citing Alexander v. State, 301 S.W.3d
361 (Tex. App.—Fort Worth 2009, no pet.). Mitchell also asserts that the trial court erred by
conducting the restitution hearing without Mitchell’s physical presence or a waiver of his
physical presence. He argues that a defendant has the right to be physically present at all phases
of the proceedings against him, absent a waiver of that right through his own conduct, citing Lira
v. State, 666 S.W.3d 498, 512 (Tex. Crim. App. 2023). Because, he argues, a trial court is
required to pronounce a defendant’s sentence in his presence, restitution must be pronounced in
the defendant’s presence. He also asserts that, because he was not physically present at the
restitution hearing, the amended judgment containing the restitution order is void.
The State responds that those complaints are subject to the preservation requirements of
Rule 33.1 of the Texas Rules of Appellate Procedure. See TEX. R. APP. P. 33.1. Because
Mitchell did not object to the proceedings in the trial court, the State argues, these issues were
not preserved. We agree.
B. Preservation Requirements
“Generally, to preserve an issue for appellate review, the complaining party must first
raise the issue in the trial court.” Garcia v. State, 663 S.W.3d 92, 95 (Tex. Crim. App. 2022)
(citing TEX. R. APP. P. 33.1(a)). “Preservation requirements ensure that the judicial system is not
burdened by costly appeals and time-consuming retrials.” Id. at 97 (citing Gillenwaters v. State,
205 S.W.3d 534, 537 (Tex. Crim. App. 2006)). “A timely objection allows the trial court an
10 opportunity to prevent or correct errors.” Id. (citing Gillenwaters, 205 S.W.3d at 537). “Such a
requirement also ‘guarantees that opposing counsel will have a fair opportunity to respond to
complaints[,]’ and ‘promotes the orderly and effective presentation of the case to the trier of
fact.’” Id. (alteration in original) (quoting Gillenwaters, 205 S.W.3d at 537). That being said, an
illegal sentence, i.e., a sentence that is not authorized by law, is void and not subject to the
preservation requirements and may be asserted for the first time on appeal. See Mizell v. State,
119 S.W.3d 804, 806 (Tex. Crim. App. 2003); Ex parte Pena, 71 S.W.3d 336, 336 n.2 (Tex.
Crim. App. 2002) (per curiam).
C. Restitution
“Restitution is a form of punishment, but it is also a crime victim’s statutory right.”
Johnson v. State, 659 S.W.3d 464, 471 (Tex. App.—Texarkana 2022) (citing TEX. CODE CRIM.
PROC. ANN. art. 42.037), aff’d, 680 S.W.3d 616 (Tex. Crim. App. 2023). As the Texas Court of
Criminal Appeals has noted, restitution “serves a number of important purposes.” Burt v. State,
445 S.W.3d 752, 756 (Tex. Crim. App. 2014). “First, it restores the victim to the ‘status quo
ante’ position he was in before the offense.” Id. (citing Thompson v. State, 557 S.W.2d 521, 525
(Tex. Crim. App. 1977)). “Second, restitution serves as appropriate punishment for the
convicted criminal.” Id. “Third, because restitution forces the offender to ‘address and remedy
the specific harm that he has caused,’ it aids in the rehabilitation process as ‘it forces the
defendant to confront, in concrete terms, the harm his actions have caused.’” Id. (footnote
omitted) (citations omitted). “Fourth, restitution acts as a deterrent to crime.” Id. (citing Hanna
v. State, 426 S.W.3d 87, 91 (Tex. Crim. App. 2014)). “Indeed, the law so favors crime victims’
11 compensation that our restitution statute requires the trial judge to justify his decision not to
order restitution to a crime victim.” Id. As a result, restitution statutes are construed “liberally to
effectuate fairness to the victims of crime.” Id. at 757 (citing Hanna, 426 S.W.3d at 91).
At the same time, “fairness to the defendant requires that his sentence be ‘pronounced
orally in his presence.’” Id. (quoting Taylor v. State, 131 S.W.3d 497, 500 (Tex. Crim. App.
2004)). Since the “written judgment is simply the ‘declaration and embodiment’ of that
pronouncement[,] . . . when there is a conflict between the oral pronouncement and the written
judgment, the oral pronouncement controls.” Id. (quoting Taylor, 131 S.W.3d at 502). As a
result, a trial court is not authorized “to orally pronounce one sentence in front of the defendant,
but then enter a different written judgment outside the defendant’s presence.” Id. (citing
Ex parte Madding, 70 S.W.3d 131, 135 (Tex. Crim. App. 2002) (orig. proceeding)). “Rather,
due process requires that the defendant be given fair notice of all of the terms of his sentence, so
that he may object and offer a defense to any terms he believes are inappropriate.” Id. (citing Ex
parte Madding, 70 S.W.3d at 136).
Nevertheless, the Texas Court of Criminal Appeals has determined that restitution is not
“‘in’ the closed curve of things that can make a ‘sentence’ legal or illegal.” Burg v. State, 592
S.W.3d 444, 451, n.39 (Tex. Crim. App. 2020) (citing Burt, 445 S.W.3d at 756; Idowu v. State,
73 S.W.3d 918, 921–22 (Tex. Crim. App. 2002)). Further, the Texas Court of Criminal Appeals
has held, at least when the appellant has an opportunity to object, that “[c]hallenges to restitution
orders must be raised in the trial court to preserve them for appellate review.” Garcia, 663
S.W.3d at 97; see also Idowu v. State, 73 S.W.3d 918, 921 (Tex. Crim. App. 2002) (holding that,
12 if an appellant “wishes to complain about the appropriateness of . . . a trial court’s restitution
order, he must do so in the trial court”), abrogated on other grounds by Garcia, 663 S.W.3d at
95; Darnell v. State, No. 06-21-00099-CR, 2022 WL 1159543, at *5 (Tex. App.—Texarkana
Apr. 14, 2022, no pet.) (mem. op., not designated for publication).
D. Analysis
In this case, Mitchell complains that the trial court’s restitution order in the amended
judgment was invalid because the trial court did not order restitution at the June 13 punishment
hearing5 and because he was not physically present at the restitution hearing.6 However,
Mitchell had the opportunity to assert both of those complaints to the trial court. He could have
objected to the restitution hearing and to the imposition of restitution on both of those bases at
the restitution hearing but failed to do so. Instead, Mitchell fully participated in the hearing
without objection and did not object when the trial court ordered restitution at the conclusion of
that hearing. As a result, he was “given fair notice of all of the terms of his sentence” and was
5 Mitchell relies on Alexander in support of his proposition that, if restitution was not ordered in the original pronouncement of punishment, it could not be imposed later. In that case, the trial court did not include restitution in its original pronouncement but included it, without a hearing, in its written judgment. Alexander, 301 S.W.3d at 364. However, as the court in Burt noted, “[T]he defendant was never put on notice that restitution might be ordered until it first appeared in the written judgment. That scenario leaves the defendant without notice and incapable of objecting or preparing a defense to the restitution order.” Burt, 445 S.W.3d at 759–60. Because Alexander did not have the opportunity to object to the restitution order, whether he was required to preserve his complaint was not an issue. 6 In his brief, Mitchell relies heavily on Lira. In that case, the Texas Court of Criminal Appeals held that “the trial court had no authority to preside over a videoconferenced plea hearing where the Appellants had not waived in person or in writing their right to be present.” Lira, 666 S.W.3d at 506. However, the appellants in that case filed motions prior to the hearing and objected to the case being set for plea hearings by videoconference, asserting their right to be physically present at the hearing. Id. at 503. As a result, preservation of their complaints for appeal was not an issue in that case. 13 given the opportunity to “object and offer a defense to any terms he believe[d] [we]re
inappropriate.” Burt, 445 S.W.3d at 757.
Because Mitchell had the opportunity at trial to challenge the appropriateness of the
restitution order and to object to his physical absence at the restitution hearing but failed to do so,
he did not preserve those issues for our review.7 See Garcia, 663 S.W.3d at 97. Further, because
a restitution order is not among those “things that can make a ‘sentence’ legal or illegal,” we find
that the order is not void. Burg, 592 S.W.3d at 451. We overrule these issues.
III. The Amended Judgment Must Be Modified
“This Court has the power to correct and modify the judgment of the trial court for
accuracy when the necessary data and information are part of the record.” Anthony v. State, 531
S.W.3d 739, 743 (Tex. App.—Texarkana 2016, no pet.) (citing TEX. R. APP. P. 43.2(b); Bigley v.
State, 865 S.W.2d 26, 27 (Tex. Crim. App. 1993)). “We have the authority to modify the
judgment to make the record speak the truth.” Minter v. State, 570 S.W.3d 941, 944 (Tex.
App.—Texarkana 2019, no pet.) (citing TEX. R. APP. P. 43.2(b); French v. State, 830 S.W.2d
607, 609 (Tex. Crim. App. 1992)).
In this case, the record shows that the trial court pronounced judgment and sentenced
Mitchell to ten month’s confinement in state jail on June 13, 2023. That same day, the trial court
entered its written judgment of conviction that reflected the ten-month sentence. Under “Date
7 We recognize that our sister court of appeals recently held that an appellant’s “right to be [physically] present at sentencing implicates the legality of a sentence and is not forfeited by a failure to object at trial.” Tates v. State, No. 13-20-00280-CR, 2023 WL 3633492, at *4 (Tex. App.—Corpus Christi–Edinburg May 25, 2023, pet. granted) (citing Burg, 592 S.W.3d at 449). In that case, the appellant appeared at the entire punishment hearing by videoconference, without objection. That included the trial court sentencing Tates to five years’ imprisonment. Id. at *3. However, unlike restitution, as the court in Burg noted, “a term of years” is “clearly ‘in’ the closed curve of things that make a ‘sentence’ legal or illegal.” Burg, 592 S.W.3d at 451. 14 Sentence Imposed” and “Date Sentence Commences,” the judgment stated “06-13-2023.” The
judgment also credited Mitchell with three days’ jail time. Nevertheless, when the trial court
entered its amended judgment of conviction by jury that included the restitution of $5,640.00
payable to Knapp, the amended judgment stated “7/6/2023” under both “Date Sentence
Imposed” and “Date Sentence Commences” and credited Mitchell with twenty-six days of jail-
time credit.
Because the trial court pronounced sentence on June 13, 2023, we modify the amended
judgment of conviction to reflect the correct date the sentence was imposed and commenced and
the correct amount of jail-time credit.
IV. Disposition
We modify the amended judgment of conviction to reflect “06-13-2023” under “Date
Sentence Imposed” and “Date Sentence Commences” and to reflect three days of jail-time credit.
We affirm the trial court’s judgment, as modified.
Jeff Rambin Justice
Date Submitted: June 12, 2024 Date Decided: June 13, 2024
Do Not Publish